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Bradley v. West Chester University of Pennsylvania State System Higher Education

United States District Court, E.D. Pennsylvania

March 6, 2017

COLLEEN M. BRADLEY
v.
WEST CHESTER UNIVERSITY OF THE PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION

          MEMORANDUM RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

         In this First Amendment retaliation action, Defendant Mark Mixner moves for summary judgment on Plaintiff Colleen M. Bradley's claim arising under Section 1983. Plaintiff, who worked under Mixner for over three years as the Director of Budget and Financial Planning (“Budget Director”) for West Chester University (“West Chester” or the “University”), contends that Mixner decided not to reappoint her to her position because she engaged in speech protected under the First Amendment. Mixner seeks summary judgment on the ground that he is entitled to qualified immunity. For the reasons discussed below, we agree with Mixner and the motion will be granted.

         I. Facts

         The following is a fair account of the undisputed factual assertions at issue in this case. Plaintiff was hired as the Budget Director for West Chester in November 2011 and she maintained that position until June 30, 2015. ECF No. 29, Def.'s Mot. for Summary Judgment (“Def.'s Mot.”), Def.'s Statement of Undisputed Facts (“DSOF”) ¶ 2. Throughout Plaintiff's employment with West Chester, her immediate supervisor was Mixner, the Vice President of Finance and Administration. Id. ¶ 4. Plaintiff's job description included several responsibilities relating to management of the budget creation process at West Chester, including reviewing and recommending improvements to that process. Id. ¶ 7. As part of her regular job duties she attended meetings held by the Administrative Budget Committee (“ABC”), weekly meetings with Mixner, and meetings of other committees as directed by Mixner. Id. ¶¶ 12, 13. At some point during the first year of her tenure at West Chester, Plaintiff concluded that the process by which she was instructed to create the budget was flawed and that the end result would not reflect the actual financial situation of the university. ECF No. 31, Pl.'s Opposition to Def.'s Mot. (“Pl.'s Opp'n”), Pl.'s Statement of Undisputed Facts (“PSOF”) ¶ 29. Specifically, Plaintiff alleges that she was told by two individuals at the Pennsylvania State System of Higher Education (“PASSHE”), the administrative body to whom West Chester's annual budget report is submitted, to change a line item in the report such that “a multimillion dollar surplus [would be converted] into a multimillion dollar deficit.” Id. She believes that this method was used as a way for West Chester to gain more taxpayer dollars than its true financial status merited. Pl.'s Opp'n at 26-27.

         Plaintiff first voiced her concerns about this to Mixner privately, during their weekly meeting on September 6, 2012. PSOF ¶ 29. Mixner told Plaintiff she should do as the PASSHE employees said and that the budget “was a political document.” Id. ¶ 30. On September 20, 2012, Plaintiff attended the ABC meeting and expressed the same concern-that the way West Chester created its budget was unethical. Id. ¶ 36. Mixner was displeased that Plaintiff “us[ed] the term ‘unethical' in connection with the budget process with the group of university leaders” and told her that “she [had] put her credibility at risk and that he would now facilitate ABC meetings.” Id. ¶ 40; DSOF ¶ 22. After that meeting, Plaintiff “continued to complain to Mixner . . . about the budget practices” and Mixner was “more stern” with Plaintiff, but their relationship was not impaired enough so as to be reflected in Plaintiff's performance reviews from that time period, which are all positive, nor as to cause Mixner not to reappoint Plaintiff to her position in June 2013. DSOF ¶¶ 24-25; Pl.'s Opp'n, Exs. 2, 3 (performance evaluations covering period from 7/1/2012 to 6/30/2014); DSOF ¶ 27 (“In June 2013, Mixner offered to reappoint [Plaintiff] as Director of Budget and Financial Planning.”).

         The issue came to a head again on October 29, 2014, when Plaintiff, at Mixner's direction, attended a meeting of West Chester's Enrollment Management Committee (“EMC”). DSOF ¶¶ 31-32. Prior to the meeting, Mixner and Plaintiff spoke about which version of the budget she would present-his version, which she believed to be misrepresentative of the university's financial situation, or hers-and Mixner told her to use his. Id. ¶ 34. Plaintiff began by presenting Mixner's budget but then subsequently presented her own, which she asserted depicted “reality.” Id. ¶¶ 35-36. Her audience at the EMC meeting included five “senior administrators, ” including the Associate Provost and the now President, then Dean of Business and Public Affairs, Chris Fiorentino. PSOF ¶¶ 11, 58; DSOF ¶¶ 33. The following day, there was a meeting of various West Chester “opinion leaders, ” including the University's president, at which Plaintiff and Mixner were scheduled to present the budget report and financial projections. PSOF ¶¶ 62-63; DSOF ¶ 37-38. Prior to the meeting, Mixner told Plaintiff that he had spoken with the president and they had decided that only Mixner's budget would be presented. PSOF ¶ 62. Plaintiff responded that she was unwilling to present Mixner's version of the budget, and so Mixner presented it. Id. ¶¶ 63-64.

         Shortly thereafter, on November 4, 2014, Plaintiff met with Mixner and asked to be considered for another role at West Chester. Id. ¶ 41; ECF No. 31, Pl.'s Response to DSOF ¶ 41. Mixner said he would consider it but then, two weeks later, informed her that upon the expiration of her current employment contract on June 30, 2015, she would not be reappointed to her position. DSOF ¶ 43.

         II. Procedural History

         Plaintiff filed suit on May 14, 2015, alleging a First Amendment retaliation claim under 42 U.S.C. § 1983, state-law claims under the Pennsylvania Whistleblower Law, and negligent as well as intentional infliction of emotional distress (ECF No. 1). Plaintiff brought all claims against the following defendants: West Chester, PASSHE, Mixner, Lawrence A. Dowdy, Dr. Gregory R. Weisenstein, Dr. Mark G. Pavlovich, Lois M. Johnson, and Ginger Coleman. Defendants moved to dismiss Plaintiff's Section 1983 claim and supplemental state law claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) (ECF No. 3). The Court dismissed the Complaint with prejudice as to the state institutions and the individual defendant's suits in their official capacities, and without prejudice otherwise (ECF No. 10). It further dismissed with prejudice Plaintiff's First Amendment retaliation claim against PASSHE and West Chester for lack of subject matter jurisdiction, and dismissed without prejudice Plaintiff's claims against the individual defendants under Section 1983.

         Plaintiff filed an Amended Complaint on January 15, 2016 in which she asserted against Defendants West Chester, PASSHE, Mixner, Dowdy, Weisenstein, Pavlovich, and Johnson the same claims asserted in her original Complaint (ECF No. 16). All Defendants moved pursuant to Rules 12(b)(1) and 12(b)(6) to dismiss the Amended Complaint (ECF No. 17). The Court substantially granted the Motion; specifically, it dismissed Plaintiff's Section 1983 claims with prejudice against all Defendants except Mixner in his individual capacity, dismissed Plaintiff's Pennsylvania Whistleblower Law claims against all Defendants without prejudice to being refiled in state court, and dismissed without prejudice Plaintiff's intentional and negligent infliction of emotional distress clams against all Defendants except Mixner (ECF No. 23).

         Mixner filed a Motion for Summary Judgment on October 31, 2016 (ECF No. 29), to which Plaintiff responded on November 21, 2016 (ECF No. 31). In Plaintiff's response she withdrew her claims for intentional and negligent infliction of emotional distress. See Pl.'s Opp'n at 21 n.2. Mixner replied to Plaintiff's response on November 28, 2016 (ECF No. 33) and Plaintiff filed a surreply on December 5, 2016 (ECF No. 37). This Court held oral argument on February 10, 2017 on the Motion (ECF No. 45).

         III. Legal Standard

         A district court should grant a motion for summary judgment if the movant can show “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 dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it “might affect the outcome of the suit under the governing law.” Id.

         A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by “pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. After the moving party has met its initial burden, the adverse party's response must, “by citing to particular parts of materials in the record” set out specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c)(1)(A). “Speculation and conclusory allegations do not satisfy [the non- moving party's] duty.” Ridgewood Bd. of Educ. V. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999) (superseded by statute on other grounds as recognized by P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 730 (3d Cir. 2009)). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing “that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor.” Id. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.

         IV. Discussion

         A. Summary of Issues

         The sole allegation remaining in this case is that Mixner violated Section 1983 by retaliating against Plaintiff due to her exercise of her First Amendment rights. Mixner moves for summary judgment on the ground that qualified immunity shields him from liability.[1]

         Section 1983 provides a cause of action against persons who, acting under color of state law, subject any person “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. “By its terms, of course, the statute creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). Thus, in the context of a plaintiff attempting to bring a Section 1983 claim on the basis of a constitutional violation, she must “demonstrate a violation of a right secured by the Constitution . . . [and] that the alleged deprivation was committed by a person acting under color of state law.” Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995) (quoting Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993)). As pertinent to the instant analysis, even where a plaintiff can meet this standard, the doctrine of qualified immunity may prevent her from obtaining civil damages “insofar as [the government actor's] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Therefore, a plaintiff can only overcome the qualified immunity defense by showing “the officer's conduct [to have] violated a constitutional right, ” which right was clearly established at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). This doctrine exists to “‘give[] ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.'” Hubbard v. Taylor, 538 F.3d 229, 236 (3d Cir. 2008) (quoting Gilles v. Davis, 427 F.3d 197, 203 (3d Cir. 2005)).

         In this case, Plaintiff alleges that Mixner's decision not to reappoint her to Budget Director in June 2013 constituted retaliation for various instances of Plaintiff's protected speech. We must determine if Plaintiff has shown the existence of a genuine dispute of material fact regarding whether Mixner violated her rights under the First Amendment, and, if so, whether a reasonable jury could find that those rights were clearly established at the time he decided not to reappoint her.

         B. Violation of ...


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