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DeGroat v. DeFebo

United States District Court, M.D. Pennsylvania

February 10, 2015


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For Donna DeGroat, Gary Clark, Plaintiffs: Samuel C. Stretton, The Law Office of Samuel C. Stretton, West Chester, PA.

For Charles DeFebo, Erin Soden, Robert Collins, Defendants: Page Darney, Pennsylvania Office of Attorney General, Lititgation Section, Harrisburg, PA.

For Office of Inspector General, Third Party Custodian: Marc A. Crum, Commonwealth of PA, Office of General Counsel, Office of Inspector General, Harrisburg, PA; Mary W Fox, PA Office of Inspector General, Harrisburg, PA.

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Matthew W. Brann, United States District Judge.

Pending before this Court is a Motion for Partial Summary Judgment (ECF No. 119) filed by Defendants Charles DeFebo, Erin Soden, and Robert Collins. The motion seeks to dismiss all supplemental allegations added by Plaintiffs in their First Amended Complaint (ECF No. 79) and their Second Amended Complaint (ECF No. 94).[1] The matter has been fully briefed and is now ripe for disposition. In accordance with the following reasoning, Defendants' Motion for Partial Summary Judgment is granted in its entirety.


Plaintiffs Donna DeGroat and Gary Clark have brought this action alleging workplace retaliation for conduct protected by the First Amendment. For all of the time relevant to this case, Plaintiffs were employees of the Pennsylvania Department of Transportation (hereinafter " PennDOT" ) at the Pike County, Pennsylvania Maintenance Office. Plaintiff DeGroat serves as the purchasing agent for the county office and continues to be employed with PennDOT. Plaintiff Clark was employed as a heavy equipment operator and retired from the department on May 28, 2011. At all times relevant to this action, Plaintiffs have been in a relationship and have married during the course of this litigation.

Defendants are also present and former employees of PennDOT. Robert Collins was employed as the Pike County Maintenance Manager before his retirement on June 18, 2011. Charles DeFebo is currently employed as the business manager for the Pike County facility and is Plaintiff DeGroat's immediate supervisor. Erin Mazikewich (né e Soden) previously worked as the labor relations coordinator for Engineering District 4-0, which includes Pike County, and is currently the business manager for the Susquehanna and Wyoming Counties' maintenance office.

This case relates to a series of workplace retaliation stemming from several complaints Plaintiffs made regarding the Defendants and the way they were conducting business. In August 2005, Plaintiff

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DeGroat confronted Defendant Collins about a sexually harassing comment he had made to an intern and subsequently helped that intern to report the harassment. Also that month, Plaintiffs drafted a letter to the Governor and Lieutenant Governor of Pennsylvania complaining of Defendant Collins' mismanagement and the condition of the roads in Pike County. Finally, Plaintiff DeGroat filed an Equal Employment Opportunity complaint (hereinafter " EEO complaint" ) against Defendant Collins alleging discriminatory and disparate treatment based on her gender.

Plaintiffs originally alleged that shortly thereafter Defendants Collins and DeFebo began a series of acts against her, including, inter alia, writing DeGroat up late for work when she was not in fact late, moving her desk to an undesirable position next to the men's room, denying a request for annual leave, removing papers from her desk, and overzealously reviewing her work.[2]

Plaintiffs filed their initial Complaint on March 28, 2008 (ECF No. 1). Following the close of discovery, Defendants filed a Motion for Summary Judgment that was granted in part and denied in part by the Honorable James M. Munley, then assigned to this case. Subsequently, Plaintiffs were granted leave to file an Amended Complaint (ECF No. 79) adding supplemental allegations of retaliation that occurred after the filing of the original complaint and which were, allegedly, based on the initiation of this lawsuit. Later, Plaintiffs were once again granted leave to file a Second Amended Complaint (ECF No. 94).

Specifically, the new allegations by Plaintiff DeGroat include the following: (1) Defendants gave her a one-day suspension for failing to sign a personnel memorandum which she believed would have prohibited her from divulging documents to anyone outside of PennDOT including, ostensibly, her attorney; (2) constant scrutiny by Defendant DeFebo of her work; (3) Defendant Collins developed an unworkable purchase order form which was designed solely to harass her; (4) Defendants DeFebo and Collins were unresponsive to her concerns regarding one of their employees who was allegedly both passively and actively interfering with Plaintiff DeGroat's ability to do her job; (5) Defendant Collins verbally attacked her during a meeting which was called to discuss her concerns over that employee; and (6) an anonymous complainant, allegedly under the direction of Defendants, filed a complaint with the Office of the Inspector General (hereinafter the " OIG" ) regarding Plaintiff DeGroat's purchasing card, leading to a suspension of her card and a subsequent investigation.

The new allegations by Plaintiff Clark include the following: (1) Defendants gave him a one-day suspension for failing to sign a personnel memorandum which he also believed would have prohibited him from divulging documents to anyone outside of PennDOT including, ostensibly, his attorney; (2) during the trial of a fellow employee who had attacked Plaintiff Clark, Defendant Collins provided the defense attorney with Clark's personnel file in order to discredit him; (3) his application for the position of automotive mechanic supervisor in October 2008 was summarily rejected, allegedly with the involvement of one of the Defendants; (4) Defendant Collins removed trees near the area in which Plaintiff Clark was working solely to harass and intimidate him; (5) Defendant Collins required Plaintiff Clark to pick up cigarette

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butts when he refused to act as foreman solely in order to humiliate him; (6) he did not receive out-of-class pay for specialist work that he performed, allegedly as a result of some bad faith on the part of the Defendants; (7) Defendant Collins commented to other employees that Plaintiff Clark must have been the person who got into an argument with a motorist in September 2011; (8) Plaintiff Clark was assigned to a less desirable work route in the winter of 2011; and (9) he was constructively discharged from his position when he retired because of the constant pattern of harassment on the part of the Defendants.

The Court permitted discovery to be reopened as to these new allegations. At the close of discovery Defendants moved for partial summary judgment, bringing the case to its present posture.


Summary judgment is appropriate where " 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." Fed.R.Civ.P. 56(a). A fact is " material" where it " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" where " the evidence is such that a reasonable jury," giving credence to the evidence favoring the nonmovant and making all inferences in the nonmovant's favor, " could return a verdict for the nonmoving party." Id.

The burden of establishing the nonexistence of a " genuine issue" is on the party moving for summary judgment. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)). The moving party may satisfy this burden by either (i) submitting affirmative evidence that negates an essential element of the nonmoving party's claim; or (ii) demonstrating to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's case. Id. at 331.

Where the moving party's motion is properly supported, the nonmoving party, to avoid summary judgment in his opponent's favor, must answer by setting forth " genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. For movants and nonmovants alike, the assertion " that a fact cannot be or is genuinely disputed must" be supported by " materials in the record" that go beyond mere allegations, or by " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1); see also Anderson, 477 U.S. at 248-50.

" When opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must 'identify those facts of record which would contradict the facts identified by the movant.'" Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003). Furthermore, " [i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e)(2).

In deciding the merits of a party's motion for summary judgment, the Court's role is not to evaluate the evidence and

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decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Although the Court may consider any materials in the record, it need only consider those materials cited. Fed.R.Civ.P. 56(c)(3).


A. Plaintiffs' Statements of Facts

As a preliminary matter, Defendants argue that Plaintiffs have not shown the existence of a genuine dispute of material facts because their response to Defendants' Statement of Facts does not comport with Local Rule 56.1. Rather, they contend, instead of denying Defendants' facts and citing to a portion of the record, Plaintiffs " regularly deny the statement and then launch into a recitation of facts, argument and speculation that does not address the facts that the defendants asserted." Defs.' Reply Brief at 5, June 16, 2014, ECF No. 139 (hereinafter " Defs.' Reply" ). In so arguing, Defendants cite to several paragraphs of Plaintiffs' Statement of Facts to demonstrate the rambling nature of the response.

Local Rule 56.1 of the United States District Court for the Middle District of Pennsylvania provides:

A motion for summary judgment filed pursuant to Fed.R.Civ.P. 56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried. Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.

M.D.Pa. Local R. 56.1. " The purpose of this rule is obvious: it enables the court to identify contested facts expeditiously and prevents factual disputes from becoming obscured by a lengthy record." Pinegar v. Shinseki, Civil Action No. 1:07-CV-0313, 2009 WL 1324125 (M.D.Pa. May 12, 2009) (Conner, J.). The requirement of a short and concise responsive statement of facts is particularly important where, as here, a voluminous record and lengthy briefs accompany the motion. See Park v. Veasie, Civil No. 3:09-CV-2177, 2011 WL 1831708, at *4 (M.D.Pa. May 11, 2011) (Rambo, J.).

After reviewing the document in question, the Court finds that Plaintiffs' Statement of Facts does not comply with Local Rule 56.1. While Plaintiffs' Statement of Facts is separate from their opposition brief, it is neither short nor concise, nor limited to material facts. In fact, it is over twice as long as Defendants' Statement of Material Facts, although it contains the same number of paragraphs. Plaintiffs consistently add facts in response to Defendants' Statement of Facts which are relevant to neither the Defendants nor the allegations at issue in the instant Motion for Partial Summary Judgment. Moreover, Plaintiffs often respond to several of paragraphs from Defendants' Statement of Facts at once, sometimes denying all and sometimes admitting in part

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and denying in part, making it inordinately difficult for this Court to interpret what facts are actually disputed. Often it actually appears that Plaintiffs are employing their Statement of Facts to make an open-ended argument about the merits of the case, rather than responding to the facts Defendants have put forth. Furthermore, though Plaintiffs do cite to portions of the record in their factual assertions, often those portions of the record are irrelevant to the fact that they are apparently disputing, making it very difficult for the Court to discern what is actually disputed and, moreover, whether Plaintiff has any evidentiary basis for each counter-fact asserted.

This lack of coherence, rambling nature and presence of non-material facts in Plaintiffs' Statement of Facts would actually " hinder rather than facilitate the Court's direct and accurate consideration" of Defendants' Motion for Partial Summary Judgment. Hartshorn v. Throop Borough, Civil Action No. 3:07-cv-01333, 2009 WL 761270, at *3 (M.D.Pa. Mar. 19, 2009) (Caputo, J.) (striking the statement of facts and subsequently dismissing the motion for summary judgment on the basis of a two-hundred and forty one paragraph statement of facts). Moreover, this " inability to comport with the rules, in turn, has left this Court to engage in a protracted deciphering which is an ineffective use of the court's time and resources and it runs contrary to the central purpose of a statement of material facts which is to aid the court to expeditiously identify factual arguments." Breslin v. Dickinson Twp., Civil No. 1:09-CV-1396, 2012 WL 7177278, at *3 (M.D.Pa. Mar. 23, 2012) (quotations omitted) (Carlson, M.J.). Consequently, this Court will strike Plaintiffs' Counterstatement of Disputed Material Facts (ECF No. 133) and will thereby deem admitted Defendants' Statement of Facts.[3]

B. Section 1983 Retaliation Claims

Plaintiffs bring suit pursuant to 42 U.S.C. § 1983 for violations of their freedom of speech and petition clause rights under the First Amendment.[4] Section 1983 is not a source of substantive rights; rather, it merely provides a remedy for violations of constitutional rights. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 815, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). To establish a claim under 42 U.S.C. § 1983, Plaintiffs must initially demonstrate that: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the complainant of rights secured under the Constitution or federal law. See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998).

As a preliminary matter, it has already been established that the Defendants are state actors. See DeGroat v. Pennsylvania Dept. of Transp., No. 3:08cv463, 2011 WL 672416, at *3 (M.D.Pa. Feb. 17, 2011) (Munley, J.); see also Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)

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(" As most commonly defined, the doctrine [of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." ).

The United States Court of Appeals for the Third Circuit has adopted a test to evaluate a claim of retaliation for engaging in activity protected under the First Amendment. See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). The plaintiff must establish: " (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the ...

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