483 F. App'x 697

Antonia GARCIA, Appellant v. NEWTOWN TOWNSHIP; Joseph Czajkowski; Thomas Jirele; Robert Ciervo; Phillip Calabro; Michael Gallagher; Jerry Schenkman; sued individually and jointly, held liable jointly and individually.

No. 11-3190.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 18, 2012.

Filed: May 22, 2012.

*698Brian M. Puricelli, Esq., Law Offices of Brian Puricelli, Newtown, PA, for Appellant.

Obinna I. Abara, Esq., Sheryl L. Brown, Esq., Rufus A. Jennings, Esq., Carla P. Maresca, Esq., Deasey, Mahoney, Valenti-ni & North, Philadelphia, PA, for Newtown Township; Joseph Czajkowski; Thomas Jirele; Robert Ciervo; Phillip Calabro; Michael Gallagher; Jerry Schenkman; sued individually and jointly, held liable jointly and individually.

Before: SMITH and FISHER, Circuit Judges and STEARNS, District Judge.*

OPINION

STEARNS, District Judge.

Antonia Garcia appeals the District Court’s grant of summary judgment to Newtown Township, her former employer, and the Township Manager,1 pretermitting Garcia’s claims of unlawful employment discrimination based on race, sex, and age, in violation of various federal and state anti-discrimination statutes,2 and her claim of First Amendment retaliation. Finding no error, we will affirm the District Court’s order.

*699BACKGROUND3

In June of 2007, Garcia was hired by then-acting Township Manager John Boyle as his administrative assistant. The offer letter, which Garcia signed on June 30, 2007, stated that the “position is classified as an exempt, salaried position under the terms of the Federal Fair Labor Standards Act.” J.A. at 181. The letter further stated that “you will be expected to read and understand Part 7 of the Newtown Township Administrative Code of 2000, titled the ‘Employee Relations Manual.’... A copy of this document is enclosed.” Id. at 182-183. Part 7E, Section 9 of the Manual stated as follows.

It is the policy of the Township that all employees who do not have a written employment agreement or do not work under a labor agreement or contract, are employed at the will of the Township for an indefinite period. Employees may resign from the Township after proper notice and may be terminated by the Township at any time, for any reason, with or without notice.... Nothing contained in this manual, employee handbooks, employment applications, Township memoranda, employment letters or other materials provided to employees in connection with their employment shall restrict the Township’s right to terminate an employee at any time or for any reason. These documents shall not create an express or implied contract of employment for a definite period.

Id. at 136. The first few months of Garcia’s employment were uneventful. She learned her job duties and responsibilities and made friends with co-workers. Among them was Pat Davidson. At Davidson’s invitation, Garcia joined Davidson and Boyle on several occasions for after-work drinks. In January of 2008, having come to suspect that Davidson and Boyle were having an affair, Garcia told Davidson that she no longer wanted to socialize after work. She explained to Davidson that she “didn’t feel right about it ... [bjecause they were both married.” Id. at 830. After this rebuff, the friendship cooled.

Around this time, Joseph Czajkowski was hired as the permanent Township Manager, and Boyle reverted to his position as Assistant Manager.4 Boyle had applied for the Manager’s job, and Garcia believed that he was bitter at having not been selected. Following the rejection, Boyle began to make “life difficult” for Garcia. Id. at 831. According to Garcia, this included constant reminders that he was still “the boss,” repeated invasions of her personal space, fixed stares, the “silent treatment,” the denial of training opportunities, assigning her work during her lunch hour, and on one occasion, pointing his finger in her face and screaming “when I tell you to do something you do it.” Id. at 831-832. She also recounts an occasion when Czajkowski asked her to “put something on the website,” a task that she believed was Boyle’s responsibility. When Boyle refused Garcia’s request that he do *700the posting instead, Czajkowski, who had overheard the conversation, yelled over to Boyle, “just do it.” Garcia claims that Boyle silently mouthed the word “bitch” at her. Id. at 831.

Matters escalated further when Boyle complained about Garcia to Czajkowski. In an email dated March 20, 2008, entitled “Personnel Issue-Toni,” Boyle criticized Garcia’s job performance in a number of respects, including her failure to “make her boss’s priorities her priorities.” Czaj-kowski testified that he also received complaints about Garcia from other employees, including Elaine Gibbs, the Finance Director,5 Bill Wert, a former department head,6 and Kathleen Kimble,7 another employee. Id. at 491. According to Czaj-kowski, the complaints were about “her being difficult to work with.” Id. at 492. In January of 2008, during an annual review, Czajkowski gave Garcia a one-percent raise instead of the four-percent raise awarded to most other Township employees.

In April of 2008, Garcia asked to meet with Czajkowski. According to Garcia, Czajkowski began the meeting by telling her that she was a “disruptive employee.” Id. at 834. Garcia began to cry and said that she was under stress because of Boyle’s and Davidson’s harassment. Czaj-kowski asked if she wanted to make a formal complaint. Garcia declined, but af-terwards contacted a Township Supervisor, Jerry Schenkman, and arranged to meet with him later that afternoon. Garcia complained to Schenkman about Czaj-kowski, Boyle, and Davidson, and also told him that Czajkowski and Boyle were frequently absent from work.8

In May of 2008, Czajkowski presented Garcia with a written memorandum entitled “Job Performance.” The memorandum identified “goals and objectives” for Garcia and emphasized the need for the “timely and professional provision of administrative services.” Id. at 194. The memorandum continued:

[y]our main duties are to carry out the directives of the Township Manager and Assistant Township Manager.... Much of the work performed by you is seen by the Board of Supervisors and the general public. Therefore it is essential that everything be checked and rechecked for correct form and detail. Please work to ensure that documents and packets that are sent to the board and public are free of errors and that all appropriate documentation is provided. We are not a large office and I require a work place environment characterized by respect and dignity ... please ... afford all department heads the respect demanded of their positions. I also understand that this position can carry with it a level of stress. Please let me know should you need assistance with dealing with any job related stress as the Township does have an employee assistance program available to you. We will have a follow up meeting in (90) ninety days to further discuss measurement of our goals and your performance. Please feel free to speak to me at any *701time regarding work or performance issues.

Id.9 Garcia states that Czajkowski ordered her to keep “things internal” when he gave her the evaluation. Id. at 885.

In September of 2008, Czajkowski terminated Garcia’s employment. Garcia requested a hearing before the Board of Supervisors, but one was never held.10 Garcia also filed complaints with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission. Garcia was replaced by a woman from a temporary employment agency, who was eventually offered full-time employment by the Township. Garcia’s replacement was in her thirties. Garcia was fifty-one years old when she was terminated.

In August of 2009, Garcia brought this action in the Eastern District of Pennsylvania. In December and January of 2010, the parties filed cross-motions for summary judgment. In late March of 2011, Garcia filed a motion to supplement the record with additional evidence, which was denied. The District Court granted summary judgment to defendants on June 9, 2011.11

DISCUSSION

Our review of the District Court’s grant of summary judgment is plenary. Sloan & Co. v. Liberty Mut. Ins. Co., 653 F.3d 175, 179 (3d Cir.2011).12 Summary judgment is appropriate when the movant demonstrates that there is no “genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). A material fact is a fact that “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). For an issue to be genuine, “all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Id. at 249, 106 S.Ct. 2505 (citation omitted). “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.’ ” Kaucher v. Cnty., of Bucks, 455 F.3d 418, 423 (3d Cir.2006) (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir.1998)).

Claim of Retaliation for Engaging in Protected First Amendment Activity

The District Court specified the three instances of alleged protected activity on which Garcia based her First Amendment retaliation claim: (1) her refusal to socialize with Boyle and Davidson after work; *702(2) her complaints to Schenkman and Ted Schmidt13 that Czajkowski and Boyle were “never ... at work”; and (3) her complaints to Schenkman and Schmidt that Czajkowski had failed to investigate the harassment of her by Boyle and Davidson. The District Court held that the instances cited by Garcia did not constitute protected speech, or had not been shown to have played a causative role in her termination. We agree.

To make out a prima facie case of retaliation in violation of the First Amendment under 42 U.S.C. § 1983, Garcia must show:

(1) that [she] engaged in a protected activity, (2) that defendants’ retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) that there was a causal connection between the protected activity and the retaliatory action. A defendant may defeat the claim of retaliation by showing that it would have taken the same action even if the plaintiff had not engaged in the protected activity.

Lauren W., 480 F.3d at 267 (citations omitted). See also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The showing of causation is critical. Summary judgment will be granted on a First Amendment retaliation claim where there “is simply no basis in the evidence” to make the causal link. Lauren W., 480 F.3d at 272.

A reviewing court must first determine whether the expression at issue was in fact protected speech. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.1993). The determination is a matter of law. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006). In the government employee context, the consideration is two-fold. First, the court must determine the capacity in which the government employee was acting when the speech was uttered. When employees are speaking in their official capacities, they “are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Second, if the employee is speaking in a private capacity, the court must determine whether her speech implicated a First Amendment “matter of public concern.” Id. at 423, 126 S.Ct. 1951; see also Hill, 455 F.3d at 241-242. ‘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.” Connick v. Myers, 461 U.S. 138, 147-148, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Matters of inherent concern to the public include official malfeasance, abuse of office, and neglect of duties.14 See Holder, 987 F.2d at 195. On the other hand, internal complaints about workplace management and matters that are articulated solely because of their personal effect on the employee are not protected speech. See Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. See also Foraker v. Chaffinch, 501 F.3d *703231, 238-243 (3d Cir.2007) (abrogated on other grounds by Borough of Duryea v. Guarnieri, — U.S.-, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011)); Spiegla v. Hull, 371 F.3d 928, 938 (7th Cir.2004) (quoting Gustafson v. Jones, 290 F.3d 895, 908 (7th Cir.2002)).

Garcia’s complaints to Schenk-man and Schmidt about her discomfiture over what she suspected was an extramarital liaison between Boyle and Davidson, and her frustration at Czajkowski’s failure to vigorously investigate her complaints of harassment, involved internal workplace matters and personal grievances that clearly fall outside the sphere of First Amendment protection. Garcia’s complaints about Czajkowski’s and Boyle’s workplace absences, suggesting as they do possible malfeasance on their part, might be seen as standing on firmer ground. However, we do not dwell on the possibility, as we agree with the District Court that Garcia made no showing that Czajkowski knew of her private conversations with Schenkman and Schmidt, much less their contents.15 See Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 493 (3d Cir.2002) (“It is only intuitive that for protected conduct to be a substantial or motivating factor in a decision, the decision-makers must be aware of the protected conduct.”).16

Violation of Due Process/Property Interest

Garcia does not contest the District Court’s finding that she did not have a protected due process property interest in her job. See Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 219 (3d Cir.2009) (“[A]n at-will employee has ‘no property interest’ in [his or her] job sufficient to trigger due process concerns.”) (citation omitted). Garcia instead presses the argument that because the Township Employee Manual mandated that claims of harassment be investigated, and in her case no investigation occurred, she was denied her right to procedural due process.17 The argument lacks merit. The Manual does state that “Newtown Township will investigate all reports of prohibited harassment.” J.A. at 129. However, the Manual defines “prohibited harassment” as offensive conduct based on “sex, age, race, religion, national origin, ethnicity, disability, sexual preference, and any other protected classification.” Id. at 128. When Garcia complained to Czajkowski that Boyle and Davidson were “harassing her,” she did not claim that their conduct fell within any of the prohibited categories. At most the record suggests that Garcia was the victim of personal animosities and petty office politics (much of which she appears to have invited by her constant feuding with her co-workers).

*704 Employment Discrimination Pursuant to Title VII, the ADEA, 18 and the PHBA 19

We agree with the District Court that Garcia failed to produce evidence sufficient to discredit the Township’s proffered non-discriminatory reasons for her termination. Garcia’s principal argument on appeal is that the District Court erred by proceeding under the McDonnell Douglas (v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)) framework after she had provided direct evidence of gender and racial animus.20 Garcia is generally correct that the McDonnell Douglas paradigm does not apply in the face of direct evidence of discriminatory animus. See Price Waterhouse v. Hopkins, 490 U.S. 228, 242, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Direct evidence may take the form of a workplace policy that is discriminatory on its face, or statements by decision makers that reflect the alleged animus and bear squarely on the adverse employment decision. As a practical matter, “only rarely will a plaintiff have direct evidence of discrimination.” Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir.1996).

Direct evidence does not include stray remarks that are made in a context unrelated to the employment decision, particularly if they are remote in time. See Fuentes v. Perskie, 32 F.3d 759, 767 (3d Cir.1994) (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir.1992)). See also Fakete v. Aetna, Inc., 308 F.3d 335, 338 n. 2 (3d Cir.2002). Boyle’s mouthing of the word “bitch” under his breath, and Czajkowski’s statement that Garcia had the ability to “cause a lot of trouble” because of her last name, are the sort of off-hand and temporally remote comments that fall well short of direct evidence of a discriminatory animus.21 See Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 513 (3d Cir.2004) (citation omitted) (remarks that are “unrelated to the decisional process itself are not direct evidence”).22

We also reject Garcia’s fallback argument that even under McDonnell Douglas *705she should have prevailed.23 She challenges the veracity of the explanation proffered by defendants of the non-discriminatory reasons for her termination,24 but presents no evidence to demonstrate any “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the Township’s explanation such “that a reasonable factfinder could rationally ... infer ‘that the employer did not act for [the asserted] non-discriminatory reasons.’ ” Fuentes, 32 F.3d at 765 (internal citations omitted).25

For the foregoing reasons, we will affirm the order of the District Court.

Garcia v. Newtown Township
483 F. App'x 697

Case Details

Name
Garcia v. Newtown Township
Decision Date
May 22, 2012
Citations

483 F. App'x 697

Jurisdiction
United States

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