Garcia v. Newtown Twp.

• Citation: 819 F.Supp.2d 416
• Decision Date: 10 June 2011
• Docket Number: Civil Action No. 09–CV–3809.
• Parties: Antonia GARCIA v. NEWTOWN TOWNSHIP, Joseph Czajkowski, Thomas Jirele, Philip Calabro, Michael Gallagher and Jerry Schenkman.
• Court: U.S. District Court — Eastern District of Pennsylvania

819 F.Supp.2d 416

Antonia GARCIA

v.NEWTOWN TOWNSHIP, Joseph Czajkowski, Thomas Jirele, Philip Calabro, Michael Gallagher and Jerry Schenkman.

Civil Action No. 09–CV–3809.

United States District Court, E.D. Pennsylvania.

June 10, 2011.

Brian M. Puricelli, Newtown, PA, for Antonia Garcia.

Carla P. Maresca, Obinna I. Abara, Rufus A. Jennings, Sheryl L. Brown, Deasey, Mahoney, Valentini, North Ltd., Philadelphia, PA, for Newtown Township, Joseph Czajkowski, Thomas Jirele, Philip Calabro, Michael Gallagher and Jerry Schenkman.

MEMORANDUM AND ORDER

JOYNER, Chief Judge.

This civil action is again before this Court on Motion of the Defendants for the entry of Summary Judgment in their favor pursuant to Fed.R.Civ.P. 56 (Doc. No. 52). For the reasons discussed below, the motion shall be granted nearly in full.

Statement of Relevant Facts

On June 30, 2007, Plaintiff, Antonia Garcia, was hired by then-Acting Township Manager John Boyle for the position of Administrative Assistant to the Newtown Township Manager in Bucks County, Pennsylvania. The position was full-time and Plaintiff was paid $43,000 per annum plus retirement and other benefits, including health insurance coverage. At the time of her hire, Plaintiff was fifty years of age. Plaintiff's employment was subsequently terminated on September 5, 2008 by Defendant Joseph Czajkowski, who had been hired as Township Manager in December of the preceding year.¹ Plaintiff contends that she was unlawfully discriminated against in the terms and conditions of her employment and unlawfully terminated from her position on the basis of her sex, age and race and in retaliation for exercising her First Amendment right to freedom of speech. Plaintiff thus brought suit under 42 U.S.C. § 1983, Title VII, 42 U.S.C. § 2000e, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 624, et seq., and the Pennsylvania Human Relations Act, (“PHRA”), 43 P.S. § 951, et seq. against the Township of Newtown and the individual members of its Board of Supervisors (Defendants Jirele, Ciervo, Calabro, Gallagher and Schenkman) and Joseph Czajkowski.² Discovery in this matter has now been completed and Defendants' seek the entry of judgment in their favor as a matter of law on all of the remaining claims against them pursuant to Fed.R.Civ.P. 56.

Standards for Ruling on Summary Judgment Motions

Under Fed.R.Civ.P. 56(a),

A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if 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. The court should state on the record the reasons for granting or denying the motion.

At the summary judgment stage, a court views the facts in the light most favorable to the non-moving party and the “judge's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Mollo v. Passaic Valley Sewerage Commissioners, 406 Fed.Appx. 664, 667 (3d Cir.2011) (quoting Pearson v. Component Technology Corp., 247 F.3d 471, 482 (3d Cir.2001)). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-moving party bears the burden of persuasion at trial, “the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden.” Id., quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir.1998). “The mere existence of some evidence in support of the nonmovant is insufficient to deny a motion for summary judgment; enough evidence must exist to enable a jury to reasonably find for the nonmovant on the issue.” Renchenski v. Williams, 622 F.3d 315, 324 (3d Cir.2010) (quoting Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009)).

Discussion

A. First Amendment Retaliation

In Count One of her complaint, Plaintiff seeks monetary damages for the defendants' purported retaliation against her for exercising her First Amendment right to free speech. Specifically, Ms. Garcia asserts that prior to her termination in September, 2008, she had “spoken out on matters of public concern about the Defendant Township, such as sex discrimination by Township supervisor (sic) personnel and supervisors engaging in personal matters on taxpayer time (while being paid).” (Pl.'s Complaint, ¶ 14).

Although it had previously been the general rule that a public employee had no right to object to conditions placed upon the terms of his or her employment, including those which restricted the exercise of constitutional rights, the Supreme Court has since made clear that public employees do not surrender all of their First Amendment rights by reason of their employment. Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 1957, 164 L.Ed.2d 689 (2006) (citing, inter alia, Pickering v. Board of Education of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) and Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)).³ Indeed, the Court has recognized the right of employees to speak on matters of public concern ⁴, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. City of San Diego, California v. Roe, 543 U.S. 77, 80, 125 S.Ct. 521, 523–524, 160 L.Ed.2d 410 (2004). Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification “far stronger than mere speculation” in regulating it. Id. (quoting United States v. Treasury Employees, 513 U.S. 454, 465, 475, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995)).

It is noteworthy that the protections granted by the First Amendment are not absolute. “ ‘From 1791 to the present,’ the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,’ and has never ‘included a freedom to disregard these traditional limitations,’ ” among which are speech which is obscene, fraudulent, defamatory, incites violence and/or is integral to criminal conduct. United States v. Stevens, ––– U.S. ––––, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435, 443–444 (2010) (quoting, inter alia, United States v. Playboy Entertainment Group, 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); R.A.V. v. St. Paul, 505 U.S. 377, 382–383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Brandenburg v. Ohio, 395 U.S. 444, 447–449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Beauharnais v. Illinois, 343 U.S. 250, 254–255, 72 S.Ct. 725, 96 L.Ed. 919 (1952)); Policastro v. Tenafly Board of Education, 710 F.Supp.2d 495, 503–504 (D.N.J.2010).

“To reconcile the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission, the [Supreme] Court [in Pickering, supra.] adopted a balancing test,” which requires a court evaluating restraints on a public employee's speech to balance “ ‘the interests of the employee as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” San Diego, 543 U.S. at 82, 125 S.Ct. at 524–525 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731); Rankin, 483 U.S. at 384, 107 S.Ct. at 2896–2897; and ( Connick, 461 U.S. at 140, 103 S.Ct. at 1686). See Also, Beckinger v. Township of Elizabeth, 697 F.Supp.2d 610, 622 (W.D.Pa.2010) (“Where implicated, the interest of the employee in speaking as a citizen on a matter of public concern must be weighed against the employer's interest in promoting the efficiency of the public services it performs through its employees”).

The threshold question in applying the Pickering balancing test is whether the employee's speech may be “fairly characterized as constituting speech on a matter of public concern.” Rankin, 483 U.S. at 384, 107 S.Ct. at 2897 (quoting Connick, 461 U.S. at 146, 103 S.Ct. at 1689). “Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement as revealed by the whole record.” Id. (quoting Connick, 461 U.S. at 147–148, 103 S.Ct. at 1690); Beyer v. Duncannon Borough, 428 Fed.Appx. 149, 154 (3d Cir.2011). “As in other First Amendment cases, the court is obligated ‘to make an independent examination of the whole record’ in order to make sure that the ‘judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Snyder, 131 S.Ct. at 1216 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) and New York Times Co. v. Sullivan, 376 U.S. 254, 284–286, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). “In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.” Id.

Once done, the court must then ascertain whether it may read the complaint as alleging that the employee was speaking as a “citizen.” Beyer, at 153...