The opinion of the court was delivered by: Judge Caputo
Currently before the Court are two motions to dismiss Plaintiff's Second Amended Complaint brought by two different groups of Defendants.*fn1 (Docs. 36 and 47.) As in her First Amended Complaint, Plaintiff Deborah Rearick alleges retaliation by the Defendants in violation of her First Amendment right to petition and a violation of her Second Amendment right to bear arms. In her Second Amended Complaint, however, Rearick has added additional Defendants and additional claims under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act ("PHRA"). In their motions to dismiss, the Defendants argue: (1) that these additional claims and parties should be dismissed for failure to follow the Federal Rules of Civil Procedure and the Local Rules; (2) that Rearick has failed to state a plausible retaliation claim for her protected actions under either the First or Second Amendment; and (3) that Rearick has failed to state a plausible retaliation claim based on Title VII and/or the PHRA. The Court will grant the Defendants' motions to dismiss as Rearick has again failed to exhibit the public concern necessary for a First Amendment retaliation claim and has also failed to plead a violation of the Second Amendment. Further, Rearick's Title VII and PHRA claim will be dismissed for failing to properly seek leave to amend. Rearick will be given leave to amend solely as to her claim under the Second Amendment.
Deborah Rearick alleges the following. Rearick is an employee of the
Pennsylvania State University ("PSU"). Defendants Susan J. Wiedemer,
Joseph Doncsecz, and Al Horvath are trustees for PSU, and Jon
Nirnberger is PSU's Human Resources Director. All four are "members of
an inside group of top level 'front office' officials . . .
euphemistically described along with the President of the University
as "Old Maine" [sic] meaning, more specifically, the Office of the
President of the University, Graham Spainer." (Second Am. Compl. at ¶
7.) At all relevant times, Graham Spanier was President of PSU and "is
commonly known, referred to, or described as 'Old Maine' [sic]
himself." (Id. at ¶ 8.) James Mattern is the Director of Research
Accounting for PSU, Defendant Wendell Courtney is an attorney for PSU,
and Defendant Richard Killian was Rearick's supervisor.*fn2
Finally, the Second Amended Complaint also names PSU as a
In 1999, Rearick's former supervisor, who is not named as a Defendant in this matter, circulated an e-mail to co-workers containing a sexually explicit image of a young girl. Rearick had been previously badgered by her supervisor for sex, and had "made known her unhappiness and disgust with this harassment." (Id. at ¶ 10.) Rearick took the email to PSU's Affirmative Action Office. However, instead of initiating a sexual harassment claim, that office sent Rearick to Jon Nirnberger, who is also known to be a confidant of President Graham Spainer.
Rearick's 1999 complaint triggered years of retaliation which have led to the instant action. In fact, Rearick filed numerous unspecified complaints against PSU, the named Defendants, and others, which resulted in retaliation "as part of the pervasive culture of cover-up and intimidation which pervades the managerial atmosphere and actions of the Pennsylvania State University." (Id. at ¶ 30.) This retaliation has come in the form of denied promotional opportunities, mental evaluations, threats, and suspensions. Specifically, in 2006, Plaintiff was injured through receiving an unduly negative performance evaluation.
Although President Spanier communicated to Rearick and other staffers in 2008 that it would be inappropriate for PSU staff to go outside the University with their problems, Rearick brought her initial lawsuit against PSU on June 24, 2008, alleging retaliation for her prior sexual harassment complaints and breach of contract. Rearick v. Pennsylvania State University, No. 1:08-cv-1195 (M.D Pa. 2008). Summary judgment was entered in favor of the University, and the Third Circuit affirmed that judgment on March 4, 2011. Rearick v. Pennsylvania State University, 416 Fed.Appx. 223 (3d Cir. 2011). While that action was pending before the district court, Rearick was acting as an Accountant I at PSU, and she bid for permanent appointment to the position as she "had a clear inside track for the appointment." (Second Am. Compl. at ¶ 47, Doc. 35.) Although Rearick was told she had performed well in the interview, she was ultimately denied the position. She was told that "Old Main made the decision," and that "Old Main has the power," meaning that President Spainer--in conjunction with Defendants Wiedemer, Horvath and Doncsecz--had personally decided to reject Rearick, who was the most qualified candidate. (Id. at ¶¶ 55, 59.) Further, Defendant Killian told Rearick that she was denied for her "reoccurring pattern of questioning authority." (Id. at ¶ 60.) As such, this denial was an act of retaliation for Rearick's filing suit in federal court, as well as lodging complaints with the Pennsylvania Human Relations Commission and Equal Employment Opportunity Commission.
In May of 2010, and while Rearick's original matter was still pending in the district court, she was again denied an opportunity for promotion. When she applied for a position as Assistant Supervisor of the Property Inventory Department, this position was given to a less qualified employee, also in retaliation for Rearick's seeking redress of grievances. Moreover, while her original action was on appeal to the Third Circuit, Rearick applied for a position of Grants and Contract Accountant I. She was also denied this position, being told that it was because she lacked a college degree. Again, however, the real reason for the denial was retaliation.
In October of 2010, Defendant Wiedemer sent a false and baseless letter to Rearick directing that she cease dragging her co-workers into her legal issues. In a further act of retaliation, while her Third Circuit appeal was pending, Defendant Wiedemer placed in Rearick's file an old e-mail from 2007 casting her in a negative light. That e-mail, from Defendant Courtney, similarly warned Rearick "not to harass other university employees in any manner." (Id. at ¶ 80.)
On May 5, 2011, Rearick was ordered to attend a meeting with Defendants Maney and Wiedemer where she was asked to turn over her keys, was questioned about her conceal-and-carry firearms permit, and was eventually sent to meet with a PSU in-house mental counselor. Rearick was told not to return to work until summoned, and appears to still be on leave. These were all further acts of retaliation.
In her Second Amended Complaint, Rearick claims that all of the Defendants have participated in retaliating against her in violation the First Amendment's Petition Clause (Count I). Further, she alleges that Defendants Maney and Wiedemer--in questioning her about her gun permit--violated her rights under both the First and Second Amendments (Count II). Additionally, Plaintiff brings a claim against PSU under Title VII and the PHRA for retaliation for filing complaints of sexual harassment and discrimination (Count III).
On October 14, 2011, I granted Defendant's Motion to Dismiss Plaintiff's Amended Complaint. (Doc. 25.) However, in doing so, I relied heavily on the Supreme Court's decision in Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011), which had been decided after Rearick filed her Amended Complaint. Therefore, I granted Rearick's Motion for Reconsideration "insofar as it request[ed] leave to submit an amended complaint on her First Amendment Petition Clause claims." Rearick v. Spainer, Civ. Act. No. 4:11-cv-624, 2011 WL 5920713, at *1 (M.D. Pa. Nov. 28, 2011). Rearick filed her Second Amended Complaint on December 19, 2011. On December 29, 2011, the Defendants remaining from the First Amended Complaint filed their Motion to Dismiss Plaintiff's Second Amended Complaint. (Doc. 36.) Later, on March 5, 2012, the Defendants who had been added in the Second Amended Complaint filed their own Motion to Dismiss (Doc. 47), reiterating the same arguments raised in the December 29 Motion. The Defendants' motions have been fully briefed and are now ripe for the Court's review.*fn3