Brown v. Commonwealth of Pennsylvania, Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAWN L. BROWN, : CIVIL ACTION NO. 1:15-CV-918

:

Plaintiff : (Chief Judge Conner)

:

v. :

:

COMMONWEALTH OF :

PENNSYLVANIA, DEPARTMENT :

OF CORRECTIONS, et al., :

:

Defendants :

ORDER

AND NOW, this 6th day of May, 2020, upon consideration of the report (Doc.

75) of Magistrate Judge Martin C. Carlson, recommending that the court grant in

part and deny in part defendants’ motion (Doc. 52) for summary judgment, wherein

Judge Carlson opines that plaintiff Dawn L. Brown has failed to carry her Rule 56

burden on her retaliation claims under Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e-2, and the Pennsylvania Human Relations Act

(“PHRA”), 43 PA. STAT. & CONS. STAT. ANN. §§ 951-963, but that there exist genuine

issues of material fact as to Brown’s First Amendment retaliation claim, and the

court noting that defendants filed objections (Doc. 78) to the report, see FED. R. CIV.

P. 72(b)(2), which have been fully briefed by the parties, (see Docs. 79, 83, 84), and

following de novo review of the contested portions of the report, E.E.O.C. v. City of

Long Branch, 866 F.3d 93, 99 (3d Cir. 2017) (quoting 28 U.S.C. § 636(b)(1)), and

affording “reasoned consideration” to the uncontested portions, id. (quoting

Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)), the court finding Judge

Carlson’s analysis to be fully supported by the record and by the applicable

decisional law,1 and further finding defendants’ objections (Doc. 78) to be without

merit,2 it is hereby ORDERED that:

1. The report (Doc. 75) of Magistrate Judge Martin C. Carlson is

ADOPTED as set forth herein.

2. Defendants’ motion (Doc. 52) for summary judgment is GRANTED in

part and DENIED in part, as follows:

a. Defendants’ motion for summary judgment is GRANTED as to

Brown’s Title VII and PHRA retaliation claims (Count I, part

two; Count II, part two).

b. Defendants’ motion is DENIED in all other respects.

3. Entry of judgment in defendants’ favor on Brown’s Title VII and

PHRA retaliation claims is DEFERRED pending resolution of the

remaining First Amendment retaliation claim (Count VI).

4. The following causes of action are DISMISSED with prejudice per

Brown’s express stipulation: (a) discrimination under Title VII against

defendant Commonwealth of Pennsylvania (Count I, part one);

1 Although Judge Carlson provides multiple reasons why Brown’s Title VII

and PHRA retaliation claims do not survive Rule 56 scrutiny, we base our decision

on only the first. That is, Brown has failed to establish a prima facie causal

connection between her protected Title VII conduct and her July 30, 2015

termination—the only “adverse employment action” Brown proffers. (See Doc.

70 at 4). The lone protected activity Brown identifies is filing a charge of

discrimination with the Department of Corrections’ equal employment office on

January 15, 2015. (See id.) Brown relies solely on temporal proximity to show

causation, but circuit precedent forecloses that approach because over six months

elapsed between her protected conduct and her termination. See LeBoon

v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (three-month

gap between protected activity and adverse action, by itself, not unusually

suggestive); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2007) (five-month gap

insufficient). Because Brown has failed to adduce evidence “sufficient to raise the

inference that her protected activity was the likely reason for the adverse

[employment] action,” Carvalho-Grievous v. Del. State Univ., 851 F.3d 249, 259 (3d

Cir. 2017) (alteration in original) (citation omitted), she has failed to demonstrate

causation for her prima facie case of retaliation under Title VII and the PHRA.

(b) discrimination under the PHRA against defendant Commonwealth

of Pennsylvania (Count II, part one); (c) violation of Pennsylvania’s

Whistleblower Protection Law against defendant Commonwealth of

Pennsylvania (Count III); (d) wrongful termination against defendant

Commonwealth of Pennsylvania (Count IV); (e) equal protection claim

under Fourteenth Amendment through 42 U.S.C. § 1983 against all

defendants (Count V); and (f) First Amendment retaliation claim only

as to defendants Commonwealth of Pennsylvania and Stephen Noll

(Count VI). (See Doc. 70 at 1-2, 10-11).

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

2 Defendants primarily object by arguing that Brown failed to establish that

Acting Deputy Secretary Michael Wenerowicz—the ultimate decisionmaker in

plaintiff’s July 2015 termination—had knowledge of Brown’s protected First

Amendment activity. (See Doc. 79 at 3-5). To be sure, Brown must show that her

protected conduct was “a substantial or motivating factor” in the alleged retaliatory

action. Flora v. County of Luzerne, 776 F.3d 169, 174 (3d Cir. 2015) (citing Gorum

v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). It is equally settled that the causation

component of Brown’s retaliation claim includes a knowledge requirement, that is,

“for protected conduct to be a substantial or motivating factor in the decision, the

decisionmakers must be aware of the protected conduct.” Gorum, 561 F.3d at 188

(quoting Ambrose v. Township of Robinson, 303 F.3d 488, 493 (3d Cir. 2002)).

However, Brown has adduced evidence that a pre-disciplinary panel made the

termination recommendation to Wenerowicz (which Wenerowicz followed) and that

members of this panel knew of Brown’s protected conduct. (See Doc. 91 ¶¶ 3-13).

Wenerowicz also testified that he relied exclusively on the pre-disciplinary panel’s

recommendation and conference materials when deciding to terminate Brown.

(See Wenerowicz Dep. 7:15-8:16, 10:1-8). This evidence is sufficient to establish

knowledge of Brown’s protected conduct, and thus prima facie causation, under

what is colloquially referred to as the “cat’s paw” doctrine. See Staub v. Proctor

Hosp., 562 U.S. 411, 418-19 (2011); McKenna v. City of Philadelphia, 649 F.3d 171,

177-78 (3d Cir. 2011). As the Court explained in Staub, defendants’ logic would

permit an employer to isolate a personnel official from an employee’s supervisors,

“vest the decision to take adverse employment actions in that official,” and thereby

shield the employer from liability for adverse actions recommended by supervisors

motivated by discriminatory or retaliatory animus. See Staub, 562 U.S. at 419-20.

Defendants provide no rebuttal to Brown’s cat’s paw theory of liability, and they

admit the relevant assertions leveled in Brown’s supplemental statement of

material facts. (See Doc. 94-1 ¶¶ 3-13). Accordingly, summary judgment as to

Brown’s First Amendment retaliation claim must be denied.