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Darlene Davis-Heep v. City of Philadelphia; Shelly R. Smith; and Kathleen Tia Burke

July 20, 2011

DARLENE DAVIS-HEEP,
PLAINTIFF,
v.
CITY OF PHILADELPHIA; SHELLY R. SMITH; AND KATHLEEN TIA BURKE, DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is Defendants, Kathleen Tia Burke ("Burke"), Shelly R. Smith ("Smith"), and City of Philadelphia's (the "City") (collectively, the "Defendants") Motion for Summary Judgment against Plaintiff, Darlene Davis-Heep ("Davis-Heep"). Also before this Court is Davis-Heep's Motion for Summary Judgment and Motion for Appointment of Counsel. For the reasons set forth below, the Defendants' Motion for Summary Judgment will be granted, and Davis-Heep's Motion for Summary Judgment and Motion for Appointment of Counsel will be denied.*fn1

I. BACKGROUND

Davis-Heep is a former Senior Attorney for the City's Law Department ("Law Department"). Smith was appointed as the City Solicitor for the City in January 2007, and was Davis-Heep's direct supervisor. Burke was hired by Smith as an attorney in the Law Department and is alleged to have been in a "supervisory position" over Davis-Heep. (Compl. ¶ 7.) Davis-Heep asserts that Burke was having an extramarital affair with Davis-Heep's then husband Jeremy Heep. (Compl. ¶¶ 8-9.) In February 2008, Davis-Heep commenced a defamation suit against Burke in the Court of Common Pleas of Philadelphia County (the "Heep-Burke Lawsuit"). That suit was based on allegations that Burke, in her capacity as a supervisor, made false statements about Davis-Heep in the course and scope of Burke's employment with the Law Department. (Compl. ¶ 10.) Davis-Heep asserts that the Heep-Burke Lawsuit was settled in September of 2008 in exchange for a written concession by Burke that she had made misrepresentations about her. (Compl. ¶ 11.)

In an unrelated suit against the City, McKenna/Carnation v. City of Philadelphia (the "McKenna Lawsuit"),*fn2 counsel for plaintiffs McKenna and Carnation, Brian Puricelli, Esquire ("Puricelli")*fn3 requested that the City provide a copy of the settlement agreement in the Heep-Burke Lawsuit. Davis-Heep asserts that the McKenna Lawsuit resulted in a jury verdict against the City in the amount of ten million dollars. Davis-Heep alleges that Burke was the supervising attorney for the City during post-trial activities in the McKenna Lawsuit, and that during a settlement conference in another case against the City (Speck v. City of Philadelphia), Burke "threatened to paper to death Puricelli in the McKenna/Carnation suit if he did not settle the case." Davis-Heep states that this threat was reported to the court, but Burke denied making the threat. The City asserts that in addition to seeking a copy of the Heep-Burke settlement agreement, Puricelli also sought information regarding the status of Burke's maternity leave which was a Law Department matter wholly unrelated to the McKenna Lawsuit. The City maintains that upon learning that Davis-Heep had communicated internal personnel matters to Puricelli, she was terminated on December 4, 2008.

Plaintiff filed the instant Complaint on November 25, 2009, and asserted claims for "42 U.S.C. § 1983: Retaliation for First Amendment free speech and petition clause Protected Activities" (Count I); "42 U.S.C. [§] 1983- Monell/Conspiracy & Equal Protection" (Count II); "Wrongful Termination- Pendent State Claim" (Count III); and "Civil Conspiracy - Pendent State Claim" (Count IV). The City and Smith filed a Motion to Dismiss on February 19, 2010. On April 19, 2010, this Court granted the Motion in part and denied it in part. Specifically, we determined that the Motion was granted with respect to the following claims: First Amendment retaliation, § 1983 conspiracy, § 1981 race discrimination, state law wrongful termination, and state law conspiracy. The Motion was denied with respect to Davis-Heep's Petition Clause claim for retaliation concerning the Heep-Burke Lawsuit, the § 1983 claim against the City, and the § 1983 race discrimination claim. See Davis v. City of Philadelphia, No. 09-5619, 2010 WL 1568502, at *1 (E.D. Pa. Apr. 19, 2010).

Burke then filed a Motion to Dismiss on May 11, 2010, which we denied on July 27, 2010. See Davis v. City of Philadelphia, No. 09-5619, 2010 WL 2991405, at *1 (E.D. Pa. July 27, 2010). Specifically, Burke asserted that in order to establish that Burke violated Davis-Heep's rights under the Petition Clause and/or subjected Davis-Heep to unlawful racial discrimination, Davis-Heep must first establish that Burke had supervisory authority over her. Burke argued that although both Davis-Heep and she were employed by the City's Law Department, she was never in a supervisory position over her. Davis-Heep, on the other hand, argued that although Burke was not her direct supervisor, she was a supervisor in the City's Law Department and had supervisory authority over her. We denied this Motion and allowed Davis-Heep the opportunity to further pursue this issue in discovery. Id. at 4.*fn4

On September 13, 2010, we filed a Scheduling Order stating that the discovery deadline for both parties was January 10, 2011, and that any dispositive motions were due by January 24, 2010. Thereafter, on December 22, 2010, the Defendants filed a Motion to Disqualify Puricelli as Davis-Heep's counsel. Davis-Heep filed a Motion for Summary Judgment on December 31, 2010, and the Defendants filed a Motion for Summary Judgment on January 24, 2011. Also, on this date, this Court held a hearing on the Defendants' Motion to Disqualify Counsel. After hearing argument, we granted the Motion and ordered Puricelli disqualified from acting as counsel for Davis-Heep in this case. We further ordered that this matter was to be stayed for a period of sixty days in order to allow Davis-Heep the opportunity to find new counsel. Davis- Heep filed a Notice of Appeal of this Order in the Third Circuit on February 19, 2011, and such appeal is still pending. On March 9, 2011, we ordered that effective March 25, 2011, the stay in this case was to be lifted and that Davis-Heep had until April 25, 2011 to respond to the Defendants' Summary Judgment Motion. On March 10, 2011, Davis-Heep filed a Motion for a Stay Pending Appeal, which we denied on April 18, 2011. On April 25, 2011, Davis-Heep filed Motions to "Compel Responses by Defendants to Discovery," to "Reinstate Claims or Amend the Complaint," and for an "Extension of Time to Respond to Defendants' Summary Judgment Motion." We denied these Motions on June 3, 2011, but gave Davis-Heep until June 17, 2011 to file her response to the Defendants' Motion for Summary Judgment. Davis-Heep then filed a "Motion for Voir Dire and Discovery Regarding Possible Recusal of Judge Kelly" which made a general allegation of ex parte communications between this Court and the Defendants. On June 10, 2011, we ordered Davis-Heep to file a brief setting forth specific instances of ex parte communications between this Court and the Defendants, and giving the Defendants until July 5, 2011 to respond. Davis-Heep filed a Response to the Defendants' Summary Judgment Motion on June 15, 2011, and then filed a Motion for Appointment of Counsel on June 21, 2011. Defendants filed a Supplemental Brief in Support of its Motion for Summary Judgment on July 5, 2011, and Davis-Heep filed a response on July 11, 2011.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). The Court asks "whether the evidence presents a sufficient disagreement to require submission to the jury or whether . . . one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be 'genuine,' i.e., the evidence must be such 'that a reasonable jury could return a verdict in favor of the non-moving party.'" Compton v. Nat'l League of Prof'l Baseball Clubs, 995 F. Supp. 554, 561 n.14 (E.D. Pa. 1998).

Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Once the moving party has produced evidence in support of summary judgment, the non-moving party must go beyond the allegations set forth in its pleadings and counter with evidence that presents "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992). "More than a mere scintilla of evidence in its favor" must be presented by the non-moving party in order to overcome a summary judgment motion. Tziatzios v. United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996). If the court determines that there are no genuine issues of material fact, then summary judgment will be granted. Celotex, 477 U.S. at 322.

III. DISCUSSION

1. Summary Judgment

As noted above, three claims remain in this action: (1) the Petition Clause claim concerning alleged retaliation by Smith, Burke, and the City for the filing of the Heep-Burke Lawsuit; (2) the § 1983 claim against the City; and (3) the § 1983 race discrimination claim. We will discuss each in turn.

A. Petition Clause

In our prior Memorandum denying the Defendants' Motion to Dismiss regarding DavisHeep's Petition Clause claim, we relied on the Third Circuit decision, San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994). In that case, the court held that a public employee need not show that her petition involves a matter of public concern in order to state a claim for a violation of her Petition Clause rights under the First Amendment. Id. at 441-42. However, in light of the recent Supreme Court decision, Borough of Duryea v. Guarnieri, No. ...


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