Mary Fender v. Delaware Division of Revenue , 628 F. App'x 95 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-4140
_____________
MARY FENDER,
Appellant
v.
DELAWARE DIVISION OF REVENUE;
MICHAEL SMITH, In his individual and official capacities;
THOMAS EOPPOLO, In his individual and official capacities
On Appeal from the United States District Court
for the District of Delaware
(District Court No.: 1-12-cv-01364)
District Judge: Honorable Gregory M. Sleet
Submitted under Third Circuit LAR 34.1(a)
on September 8, 2015
(Opinion filed: October 14, 2015)
Before: VANASKIE, NYGAARD, and RENDELL Circuit Judges
O P I N I O N*
RENDELL, Circuit Judge:
Appellant Mary Fender appeals the District Court’s grant of summary judgment to
the Delaware Division of Revenue (“DOR”), her former employer, and Michael Smith
and Thomas Eoppolo, her former supervisors, on her § 1983 claim for First Amendment
retaliation and her claim for violation of the Delaware Whistleblower Protection Act
(“WPA”). We will affirm the grant of judgment in favor of the DOR on the WPA claim
but vacate the judgment for Smith and Eoppolo on the First Amendment claim because
we disagree with the District Court’s conclusion that Fender was complaining only about
matters of private, not public, concern.
I. Background
Fender began working for the DOR in 2003 as a tax auditor. Her position was
originally in Wilmington, but in 2005 or 2006, she transferred to New Castle. Between
2009 and 2010, the DOR reorganized and Eoppolo became her direct supervisor, with
Smith supervising Eoppolo. In April 2010, Smith transferred Fender’s position back to
Wilmington and asked her to return there by May 2010. She returned to Wilmington on
December 14, 2010 and then, six days later, she requested a transfer to the Dover office.
Smith rejected her transfer request. After rejecting her transfer, Smith noted in an email
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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that Fender was “trying to sell her agenda.” (App. 333.) In his deposition, when asked
“what agenda is she trying to sell,” Smith responded that Fender’s “idea was that the
Division of Revenue in her opinion discriminated against women as a whole.” (App.
581-82.)
On December 22, 2010, Fender complained to DOR Deputy Director Colleen
Yegla about the transfer denial and about generally unfair treatment. Fender noted that
Smith had recently approved a transfer request for a male employee and claimed that her
transfer request was denied because she was a woman. Fender also complained that
Eoppolo had called her on her personal cell phone while she was at a doctor’s
appointment, and that he did not approve her financial transactions promptly.
Fender filed an EEOC complaint on February 11, 2011 alleging sex and age
discrimination against Smith and Eoppolo. Her EEOC complaint described the incident
when Eoppolo called her while she was at the doctor and Smith’s denial of her transfer
request. Fender said that Eoppolo called at the doctor’s appointment because “this was
him trying to intimidate me. He does not chek [sic] up on male counterparts.” (App.
808.) She also said that she “spoke about this with a coworker in the HR department and
her response was she didn’t know how they get away with some of the things they do.
She said they were referred to as the ‘boys club.’” (App. 808.) In the EEOC form,
Fender referenced Florence Smith, a woman who “has been waiting for her test for
promotion to be graded for 1 yr.  male counterparts got interviews for their
promotions.” (App. 809.)
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Fender claims that after she filed her EEOC complaint, her supervisors stopped
her from starting new projects, gave her pre-existing projects to others, and limited the
number of letters that she could send. She also claims that a coworker told her that “he
was not supposed to talk to me, that I was blackballed, and when they want to try to find
a way to get you out they will.” (App. 715.) Eoppolo asked her to submit a report every
Monday, tracking her activity from the previous week, even though other male auditors at
her level were not required to report weekly.
In July of 2011, Fender was in a car accident and went on short-term disability.
She exhausted her allotted leave before returning to work. The DOR said she could
return to her previous job on a probationary basis, but Fender refused and her
employment with DOR concluded.
Fender filed suit asserting claims for, inter alia, First Amendment retaliation and
violation of the WPA. The District Court granted summary judgment to Appellees on all
claims. It held that Fender could not establish a First Amendment retaliation claim
because her complaints did not address matters of public concern. The District Court
explained that Fender “is unable to point to facts in the record supporting her position
that sex discrimination, as a larger problem within the DOR, was at the heart of her
complaints.” (App. 11.) The District Court noted that Fender’s complaints to Yegla
focused on “‘unfair treatment’ specific to Fender—e.g., Eoppolo calling Fender’s cell
phone and failing to approve Fender’s financial transactions in a timely manner; Smith
and Eoppolo’s refusal to grant Fender’s transfer request.” (App. 11.) It reasoned that
“Fender fails to provide any evidence that the specific complaints . . . were anything other
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than the personal grievances of an employee, seeking personal relief.” (App. 12.)
Because the District Court concluded that Fender had not spoken about a matter of public
concern, it did not assess the other elements of a First Amendment retaliation claim.
The District Court also held that Fender failed to establish a WPA claim because
the WPA protects only employees who have reported health, safety, or environmental
hazards or financial mismanagement.
II. Analysis
“We review a district court’s grant of summary judgment de novo . . . .” Viera v.
Life Ins. Co. of N. Am., 642 F.3d 407, 413 (3d Cir. 2011). “In conducting our review, we
view the record in the light most favorable to the party opposing the motion and draw all
reasonable inferences in his favor.” Baldassare v. State of N.J., 250 F.3d 188, 192 n.1
(3d Cir. 2001).
We will vacate the District Court’s judgment in favor of Smith and Eoppolo on
Fender’s First Amendment retaliation claim because there is evidence that Fender was
complaining about gender discrimination generally, as opposed to personal grievances.
A public employee’s statement is protected by the First Amendment when, inter alia, “the
statement involved a matter of public concern.” Flora v. Cnty. of Luzerne, 776 F.3d 169,
175 (3d Cir. 2015) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.
2006)). “A public employee’s speech involves a matter of public concern if it can be
fairly considered as relating to any matter of political, social or other concern to the
community.” Brennan v. Norton, 350 F.3d 399, 412 (3d Cir. 2003) (quoting Baldassare,
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250 F.3d at 195). Gender discrimination is clearly a matter of political and social
concern. See Azzaro v. Cnty. of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997) (holding
that “gender discrimination” is “as much a matter of public concern as racial
discrimination”).
The issue here is whether Fender’s complaints were, in fact, about gender
discrimination or were only about denial of her transfer request, delayed approval of her
financial transactions, and the phone call while she was at a doctor’s appointment. In
other words, “public speech cannot ‘constitute[] merely personal grievances.’” Brennan,
350 F.3d at 412 (quoting Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir.
1994)). “This does not, however, suggest that speech which is motivated by private
concern can never qualify as protected speech. It clearly can if it addresses a matter that
concerns the public as well as the speaker.” Id. There is evidence indicating that Fender
complained about gender discrimination, not merely her private grievances. First,
Fender’s supervisor Smith stated that Fender was trying to sell her agenda “that the
Division of Revenue in her opinion discriminated against women as a whole.” (App.
582.) Second, Fender’s EEOC complaint states that her supervisor does not check up on
male workers and that her coworker in Human Resources referred to “the ‘boys club’”
and said “she didn’t know how they get away with some of the things they do.” (App.
808.) And third, Fender noted in her EEOC form that a woman, “ha[d] been waiting for
her test for promotion to be graded for 1 yr.” even though “male counterparts got
interviews for their promotions.” (App. 809.) This evidence indicates that Fender was
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complaining about gender discrimination generally and, therefore, that she spoke about a
matter of public concern.
We will, however, affirm the District Court’s ruling on the WPA claim. The WPA
protects employees who report violations. It defines “violation” as “an act or omission”
that is “[m]aterially inconsistent with, and a serious deviation from, standards
implemented . . . to protect employees or other persons from health, safety, or
environmental hazards” or “[m]aterially inconsistent with, and a serious deviation from,
financial management or accounting standards implemented . . . to protect any person
from fraud, deceit, or misappropriation of public or private funds or assets.” Del. Code
Ann. tit. 19, § 1702(6). Gender discrimination simply does not fall within this rubric.
We will thus vacate the District Court’s judgment as to Fender’s First Amendment
retaliation claim and remand for the District Court to assess the other elements of her
First Amendment claim. We will affirm the District Court’s judgment on Fender’s WPA
claim.
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