Frank Brzozowski v. Pennsylvania Turnpike Commissi ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3317
__________
FRANK T. BRZOZOWSKI,
Appellant
v.
PENNSYLVANIA TURNPIKE COMMISSION; GOVERNOR OF PENNSYLVANIA,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF PENNSYLVANIA AND HIS
SUCCESSORS IN OFFICE; PENNSYLVANIA TURNPIKE COMMISSIONERS,
INDIVIDUALLY AND AS AGENTS AND EMPLOYERS OF THE PTC; WILLIAM
K. LIEBERMAN, CHAIRMAN; A. MICHAEL PRATT, ESQUIRE, VICE
CHAIRMAN; PASQUALE T. DEON, SR., SECRETARY TREASURER; SEAN
LOGAN, COMMISSIONER; BARRY J. SCHOCH, P.E. SECRETARY OF
TRANSPORTATION; PATRICIA SCHLEGEL, INDIVIDUALLY AND AS AGENT
AND EMPLOYEE; JUDY TREASTER, INDIVIDUALLY AND AS AGENT AND
EMPLOYEE; DOROTHY ROSS, INDIVIDUALLY AND AS AGENT AND
EMPLOYEE; PATRICK CARO, INDIVIDUALLY AND AS AGENT AND
EMPLOYEE; JILL DAVIS, INDIVIDUALLY AND AS AGENT AND EMPLOYEE;
DAVID SMITH, INDIVIDUALLY AND AS AGENT AND EMPLOYEE;
LYNN FEEMAN, INDIVIDUALLY AND AS AGENT AND EMPLOYEE;
TROOP T OF THE PENNSYLVANIA STATE POLICE; CPL. SHAWN
KERNAGHAN, BOWMANSVILLE PSP OFFICE, (LANCASTER COUNTY)
INDIVIDUALLY AND AS AGENT AND EMPLOYEE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 5:15-cv-02339)
District Judge: Honorable Mark A. Kearney
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2023
Before: JORDAN, GREENAWAY, JR., and NYGAARD, Circuit Judges
(Opinion filed: May 12, 2023)
___________
OPINION*
___________
PER CURIAM
Pro se Appellant Frank Brzozowski appeals from the District Court’s judgment in
this civil rights and employment discrimination action. For the reasons set forth below,
we will affirm.
I.
In 2015, Brzozowski initiated this action in the District Court, raising two distinct
sets of claims against two sets of defendants. First, Brzozowski raised claims of false
arrest, malicious prosecution, and fabrication of evidence under 42 U.S.C. § 1983 against
Pennsylvania state police corporal Shawn Kernaghan, Pennsylvania State Police “Troop
T,” and former Pennsylvania Governor Thomas Corbett (the “law enforcement
defendants”), related to Kernaghan’s stop of Brzozowski’s vehicle and the subsequent
issuance of a citation. Second, Brzozowski, a white male of Polish descent then in his
fifties, asserted claims of discrimination based on gender, age, and national origin against
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
his former employer, the Pennsylvania Turnpike Commission (“PTC”), and various PTC
employees.
After all defendants moved to dismiss Brzozowski’s complaint, the District Court
entered an order dismissing Brzozowski’s claims against the law enforcement defendants
and the individual PTC employees with prejudice and dismissing Brzozowski’s claims
against the PTC with leave to amend. Brzozowski then filed an amended complaint,
raising largely the same claims as his initial complaint and adding several others,
including claims that the PTC defendants retaliated against him for his political affiliation
and whistleblowing activity. The defendants moved to dismiss the amended complaint,
and when Brzozowski failed to file a response, the District Court granted the defendants’
motion as unopposed. Brzozowski appealed the dismissal of both his initial and amended
complaint. On appeal, we affirmed the District Court’s order dismissing the initial
complaint in part with one modification but vacated the order dismissing the amended
complaint and remanded for further proceedings. See Brzozowski v. Pa. Turnpike
Comm’n, 738 F. App’x 731, 733-35 (3d Cir. 2018) (per curiam). 1
On remand, the District Court dismissed a number of Brzozowski’s claims in his
amended complaint with prejudice but afforded him leave to amend certain claims
1
We vacated the District Court’s order based on its failure to consider the factors set out
in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984), before
dismissing the amended complaint as unopposed. See Brzozowski, 738 F. App’x at 734.
We did not consider the merits of the claims in Brzozowski’s amended complaint.
3
against the PTC and employees Dorothy Ross and Patricia Schlegel. Brzozowski later
filed his second amended complaint, raising claims of retaliation in violation of the First
Amendment; discrimination based on his Polish national origin, sex, and age; quantum
meruit; and unjust enrichment. The defendants filed a motion to dismiss the second
amended complaint, which the District Court granted in part, dismissing all claims except
for those of age and sex discrimination against the PTC related to the failure to hire
Brzozowski for an IT Executive Assistant position.
The case proceeded to discovery, after which the PTC filed a motion for summary
judgment, which Brzozowski, through counsel, opposed. The District Court granted the
PTC’s motion, concluding that Brzozowski failed to make out a prima facie case of age
or sex discrimination and that, even if he did, he did not create a genuine issue of material
fact demonstrating that the PTC’s legitimate reasons for its actions were pretext for
discrimination. Brzozowski timely appealed pro se.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over decisions granting motions to dismiss and motions for summary judgment. See
Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012); Blunt v. Lower Merion
Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). In reviewing dismissal under Rule 12(b)(6),
we must accept all factual allegations in the complaint as true and construe them in the
light most favorable to the plaintiff. See Fleisher, 679 F.3d at 120. Summary judgment
4
is appropriate if, viewing the evidence in the light most favorable to the non-moving
party, “there is ‘no genuine issue as to any material fact [such] that the moving party is
entitled to judgment as a matter of law.’” Kelly v. Borough of Carlisle, 622 F.3d 248,
253 (3d Cir. 2010) (citation omitted). “[U]nless there is sufficient evidence for a jury to
reasonably find for the nonmovant,” summary judgment should be granted. Barefoot
Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011).
III.
Brzozowski challenges the District Court’s dismissal of various claims at the
pleading stage in addition to the District Court’s order granting summary judgment to the
defendants on Brzozowski’s remaining claims of age and sex discrimination. We agree
with the District Court’s disposition of Brzozowski’s claims.
A. Dismissed Claims
Brzozowski first argues that this Court should order the District Court to
“reinstate” his claims for malicious prosecution and fabrication of evidence against the
law enforcement defendants. We previously affirmed the District Court’s dismissal of
these claims against defendant Kernaghan in his personal capacity but modified the
dismissal to be without prejudice, noting that because the claims necessarily imply the
invalidity of Brzozowski’s traffic conviction, they will not accrue unless the conviction is
invalidated. See Brzozowski, 738 F. App’x at 734. 2 Brzozowski now argues that we
2
We otherwise “affirm[ed] the District Court’s dismissal of Brzozowski’s initial
5
should reinstate these claims because a copy of his driving record obtained in February
2019 no longer reflects a conviction. Insofar as this amounts to an allegation that the
traffic conviction has been invalidated and that his claims have accordingly accrued, see
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), he did not raise these allegations in his
second amended complaint. When Brzozowski raised the issue in a reply to the
defendants’ motion to dismiss, the District Court noted that he could move for leave to
file a third amended complaint to plead these claims, but he did not do so. As it is not for
us to determine in the first instance on appeal whether Brzozowski’s claims against
Kernaghan have accrued, cf. Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80,
88 n.12 (3d Cir. 2013), we decline his request to reinstate them.
Brzozowski also appears to challenge the District Court’s dismissal of his claim
that the PTC and several employees retaliated against him for objecting to unfair bid
practices, assisting minorities in his capacity as an Executive Assistant in the Office of
Diversity and Inclusion (“ODI”), and for his political affiliation. We agree with the
District Court, however, that Brzozowski failed to plead a sufficient nexus between any
complaint for the reasons it explained,” including its conclusion that Brzozowski’s claims
against Troop T and Governor Corbett, as well as his claims against Kernaghan in his
official capacity, were barred by the Eleventh Amendment and, with respect to Governor
Corbett, because there is no respondeat superior liability under § 1983. See Brzozowski,
738 F. App’x at 732, 734; see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100, 120-21 (1984) (discussing Eleventh Amendment immunity); Chavarriaga v. N.J.
Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (reasoning that § 1983 liability cannot
be predicated on a respondeat superior theory).
6
allegedly protected activity and an adverse employment action. See Hill v. Borough of
Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (describing elements of retaliation claim
under the First Amendment). Brzozowski made general allegations of favoritism towards
politically connected Republicans and speculated that the ODI was disliked within the
PTC and that he was retaliated against and treated unfairly because of his role within that
office. His allegations regarding the reporting of purportedly unfair bid practices were
similarly vague. Such contentions fall short of stating a plausible retaliation claim. Cf.
James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (observing that we may
“disregard rote recitals of the elements of a cause of action, legal conclusions, and mere
conclusory statements”).3
Brzozowski also appears to challenge the dismissal of claims that he was not hired
for positions in the PTC’s legal department because of his age, sex, and national origin, in
3
Relatedly, Brzozowski contends that he should have been allowed to conduct pre-
pleading discovery in order to properly plead claims that defendants conspired to violate
his “civil right to work” and state whistleblower law. See Appellant’s Br. at 18-19, 21.
But Brzozowski was not entitled to discovery on these claims, as he had not cured the
legal insufficiency of his complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009)
(“Because respondent’s complaint is deficient under Rule 8, he is not entitled to
discovery.”); Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir.
1987) (“The purpose of [Rule] 12(b)(6) is to enable defendants to challenge the legal
sufficiency of complaints without subjecting themselves to discovery.”). Moreover, the
District Court dismissed Brzozowski’s whistleblower claim on statute-of-limitations
grounds, but Brzozowski has not raised any arguments on appeal to challenge that ruling
and has thus forfeited the issue. See M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist.,
969 F.3d 120, 124 n.2 (3d Cir. 2020).
7
violation of federal and state anti-discrimination laws.4 Specifically, he has alleged that
younger women were hired to positions that he did not have the opportunity to apply for
and that most positions in the legal department were held by people with Irish last names
rather than individuals of Polish descent. However, Brzozowski has also acknowledged
that the positions at issue were confidential and were not posted in accordance with
internal policy. We accordingly agree with the District Court that Brzozowski’s
allegations fail to give rise to an inference of discrimination, as there is no plausible
indication that his inability to apply to these positions was based on his age, sex, or
national origin (as opposed to the confidentiality of the postings). Likewise,
Brzozowski’s vague allegations regarding Irish American employees in the legal
department do not, without more, give rise to a plausible inference of discrimination. See
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003) (per curiam) (“The central
focus of the prima facie case is always whether the employer is treating some people less
favorably than others because of their race, color, religion, sex, or national origin.”
(citation and internal quotation marks omitted)).5
4
The Age Discrimination in Employment Act (“ADEA”) makes it unlawful for an
employer to refuse to hire, discharge, or otherwise discriminate against an employee
based on age, see 29 U.S.C. § 623(a), while Title VII prohibits the same with respect to,
inter alia, gender and national origin, see 42 U.S.C. § 2000e-2(a). Likewise, the
Pennsylvania Human Relations Act (“PHRA”) prohibits discrimination based on both age
and gender, among other things, and is interpreted in accordance with its federal
counterparts. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
5
To the extent that Brzozowski’s arguments that certain individual PTC employees
8
Accordingly, we agree with the District Court’s decision to dismiss the
aforementioned claims at the pleading stage. 6
B. Summary Judgment
The District Court also properly granted the PTC’s motion for summary judgment
with respect to Brzozowski’s claims that he was denied a position as an IT Executive
Assistant and terminated by the PTC because of his age and sex.7 Specifically, even if
Brzozowski made a prima facie case of discrimination under the anti-discrimination
statutes, we agree with the District Court that the PTC demonstrated legitimate, non-
discriminatory reasons for its actions. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-03 (1973) (describing burden-shifting framework for Title VII discrimination
claims); Martinez v. UPMC Susquehanna, 986 F.3d 261, 265 (3d Cir. 2021) (applying
McDonnell Douglas framework to age discrimination claim). As the District Court
fabricated allegations of misconduct against him and unfairly administered a word typing
test can be construed as a contention that these employees violated Title VII or the
ADEA, the District Court properly concluded that neither statute imposes liability on
individual employees. See Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061,
1077-78 (3d Cir. 1996) (en banc); Hill, 455 F.3d at 246 n.29.
6
Moreover, as Brzozowski does not raise arguments pertaining to the District Court’s
analysis of his state-law claims for unjust enrichment and quantum meruit in his opening
brief, those claims have been forfeited. See M.S. ex rel. Hall, 969 F.3d at 124 n.2.
7
While the District Court initially allowed only Brzozowski’s claims that he was not
hired as an IT Executive Assistant because of his age and gender to proceed to discovery,
it ultimately also considered the related issue of whether Brzozowski was terminated for
discriminatory reasons in deciding the PTC’s motion for summary judgment.
9
recognized, the record demonstrates that Brzozowski was terminated for violating
multiple workplace policies while his application for the IT position was still being
considered. Namely, the PTC provided evidence that, following an investigation,
Brzozowski was terminated for using PTC property for lodging purposes, making
excessive personal use of PTC computer systems, and acting in an intimidating manner
towards defendant Ross during a Microsoft Excel test Brzozowski attended as part of an
interview process.
Brzozowski devotes much of his brief to attempting to refute that he violated
workplace policies and contending that the behavior for which he was terminated was
justified. “To discredit the employer’s proffered reason[s], however, the plaintiff cannot
simply show that the employer’s decision was wrong or mistaken.” Fuentes v. Perskie,
32 F.3d 759, 765 (3d Cir. 1994). The issue is therefore not whether the misconduct
allegations against Brzozowski “were substantiated or valid, or whether [the PTC] was
remiss to rely upon” them, but rather whether the PTC believed the allegations “to be
accurate and actually relied upon them.” Id. at 766-67; see also Pulczinski v. Trinity
Structural Towers, Inc., 691 F.3d 996, 1003 (8th Cir. 2012) (“To prove that the
employer’s explanation was false, the employee must show the employer did not truly
believe that the employee violated company rules.”). Brzozowski has provided no
evidence to suggest that the PTC did not truly believe that he violated the policies at
issue, nor has he pointed to evidence that the decisions to terminate him and not to rehire
10
him for the IT position were actually based on his age or sex. See Fuentes, 32 F.3d at
763 (noting that a plaintiff must demonstrate “both that the reason was false, and that
discrimination was the real reason” for the employer’s action (citation and internal
quotation marks omitted)); see also Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133,
1137 (7th Cir. 1997) (“Facts, not an employee’s perceptions and feelings, are required to
support a discrimination claim.”). Thus, the District Court properly granted the PTC’s
motion for summary judgment. 8
Accordingly, we will affirm the judgment of the District Court. 9
8
We have considered the remaining arguments raised in Brzozowski’s opening brief and
various other filings and conclude that they lack merit.
9
Brzozowski’s motions to enlarge the record are denied. See In re Capital Cities/ABC,
Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir. 1990) (“This
Court has said on numerous occasions that it cannot consider material on appeal that is
outside of the district court record.”). Brzozowski essentially contends that he should be
permitted to add to the record and file supplemental responses to affidavits and motions
filed by the PTC below because the attorney who represented him in summary judgment
proceedings was ineffective, but “[t]he general rule in civil cases is that the ineffective
assistance of counsel is not a basis for appeal or retrial.” Nelson v. Boeing Co., 446 F.3d
1118, 1119 (10th Cir. 2006); see also Kushner v. Winterthur Swiss Ins. Co., 620 F.2d
404, 408 (3d Cir. 1980). Brzozowski’s motion to strike the PTC’s response to one of his
motions to enlarge the record is also denied. To the extent that Brzozowski’s filings
request any other relief, it is denied.
11