Mary Herman v. Carbon Cty , 393 F. App'x 863 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-2693
_____________
MARY ALICE HERMAN,
Appellant
v.
CARBON COUNTY;
ROBERTA BREWSTER, Court Administrator;
WILLIAM O. GUREK;
WAYNE NOTHSTEIN;
CHARLES GETZ, County Commissioner
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-04-cv-00614)
District Judge: Honorable James M. Munley
Submitted Under Third Circuit LAR 34.1(a)
September 13, 2010
Before: RENDELL, FISHER and GARTH, Circuit Judges.
(Filed: September 14, 2010)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Mary Alice Herman appeals the District Court’s grant of summary judgment in
favor of Defendants Carbon County, Pennsylvania, Carbon County Commissioners
William O’Gurek, Wayne Nothstein, and Charles E. Getz, and Roberta Brewster, the
Carbon County Court Administrator (collectively, “Defendants”). Because we write for
the parties who are familiar with the factual context and procedural history of this case,
we recite only the facts that are relevant to our analysis.1
BACKGROUND
For eighteen years, Herman was employed by the Carbon County Jury Selection
Commission in a full-time position as Carbon County’s Jury Clerk. In 2003, President
Judge Webb recommended to the Carbon County Salary Board that they replace the Jury
Clerk position with a part-time Jury Selection Commission Clerk in order to save
administrative costs. The new position would reduce Herman’s hours to ten-and-a-half
hours per week. Judge Webb made this recommendation despite opposition from two
members of the Jury Selection Commission, Brenda Ellis and William Poluka. Herman
wrote to the County Commissioners asking them to reject Judge Webb’s proposal, and
she openly supported Ellis and Poluka when they spoke with the media regarding some of
the issues dealt with by the Jury Selection Commission. Herman also appeared in a
newspaper photograph with Poluka and Ellis with a caption stating that “they are
complaining” (Appellant’s Br. 10) and supported Poluka and Ellis in filing a complaint
1
This case has a lengthy procedural history, see Herman v. County of Carbon, No.
04-614, 2009 WL 1259083 (M.D. Pa. May 5, 2009); however, in this opinion we will
review only the District Court’s grant of summary judgment.
2
against Judge Webb with the Judicial Conduct Board. In January 2004, County
Commissioners O’Gurek, Nothstein, and Getz, acting in accord with the Salary Board,
voted in favor of Judge Webb’s proposal.
Herman brought claims alleging that the Defendants violated (1) her First
Amendment rights by retaliating against her because she spoke about a matter of public
concern; (2) the Due Process Clause of the Fourteenth Amendment by improperly
terminating her employment; (3) the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat.
§§ 1421-1428, by terminating her in retaliation for her support of Ellis and Poluka; and
(4) the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, by
discriminating against her on account of her age.2 We exercise plenary review over the
District Court’s grant of summary judgment, and will affirm. Norfolk S. Ry. Co. v. Basell
USA Inc., 512 F.3d 86, 91 (3d Cir. 2008).
DISCUSSION 3
The District Court granted summary judgment in favor of the Defendants on
Herman’s First Amendment retaliation claim because she did not provide evidence
showing that “‘the exercise of [her] First Amendment rights played some substantial role
in the relevant decision.’” Herman, 2009 WL 1259083 at *5 (citing Suppan v. Dadonna,
2
Herman asserted the first three claims against all the Defendants, but brings the
fourth claim against only Carbon County. Herman, 2009 WL 1259083 at *2.
3
The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise
jurisdiction under 28 U.S.C. § 1291.
3
203 F.3d 228 (3d Cir. 2000)). The District Court noted that Herman provided evidence
from which a jury could conclude that Judge Webb acted in retaliation for her support of
Ellis and Poluka; however, Judge Webb is not a defendant in this case. The District Court
determined that Herman did not provide sufficient evidence indicating that her speech
was a “substantial factor in the county defendants’ decision to adopt Judge Webb’s
recommendation.” Id. at *6.4
The District Court next found that Herman’s support of Ellis and Poluka’s
complaints was not a protected activity under the Pennsylvania Whistleblower Law, 43
Pa. Cons. Stat. §§ 1421-1428. That statute states that “[n]o employer may discharge,
threaten, or otherwise discriminate or retaliate against an employee regarding the
employee’s compensation, terms, conditions, location, or privileges of employment
because the employee . . . makes a good faith report or is about to report, verbally or in
writing, to the employer or appropriate authority an instance of wrongdoing or waste.” Id.
at § 1423(a). Waste is defined as “an employer’s conduct or omissions which result in
substantial abuse, misuse, destruction or loss of funds or resources belonging to or
derived from Commonwealth or political subdivision sources” and wrongdoing is defined
as “a violation which is not of a merely technical or minimal nature of a Federal or State
regulation, of a political subdivision ordinance or regulation or of a code of conduct or
4
The District Court dismissed Herman’s retaliation claim against Brewster after
determining that, as Court Administrator, Brewster did not have the authority to alter
Herman’s employment status.
4
ethics designed to protect the interest of the public or the employer.” Id. at § 1422. The
District Court found that Herman did not file any complaints relating to waste or
wrongdoing as defined by the Pennsylvania Whistleblower Law.
The District Court granted the Defendants’ motion for summary judgment
regarding Herman’s due process claim because Herman was an “at will” employee and
therefore was not entitled to due process because she did not have a property interest in
her employment. Herman, 2009 WL 1259083 at *10 (citing Thomas v. Town of
Hammonton, 351 F.3d 108, 113 (3d Cir. 2003)).
Finally, the District Court dismissed Herman’s ADEA claim because she did not
provide evidence sufficient to rebut the Defendants’ legitimate non-discriminatory
reasons for reducing Herman’s hours.
On appeal, Herman urges that she presented adequate evidence to withstand
summary judgment on each of her four claims. However, she failed to provide the
support required under Federal Rule of Civil Procedure 56 for her claims.5
We have reviewed the record in this case and considered Herman’s arguments on
appeal. We believe the District Court properly considered and decided the issues
presented. Accordingly, we will AFFIRM for the reasons set forth by the District Court.
5
The District Court ordered Herman to file a statement of facts in accordance
with Local Rule 56.1. Herman, 2009 WL 1259083 at * 3. However, this statement of
facts failed to refer to the parts of the records that support the statements and instead,
“simply repeats, nearly verbatim, the allegations in plaintiff’s second amended complaint,
with no citations to the record.” Id.
5