The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DAWN WALEGA, :
Plaintiff : CIVIL ACTION NO. 3:21-2006
V. : (JUDGE MANNION)
LACKAWANNA COUNTY :
GOVERNMENT OFFICE, et al.,
Defendants
MEMORANDUM
Pending before the court is the report of United States Magistrate
Judge Daryl F. Bloom, which recommends that the defendants’ motion for
summary judgment be granted. (Doc. 85). The plaintiff has filed objections
to Judge Bloom's report. (Docs. 89, 90). Upon review of the record in this
action, the court will OVERRULE the plaintiff's objections to Judge Bloom’s
report and recommendation and the ADOPT the report and recommendation
in its entirety.
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to
the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy
itself that there is no clear error on the face of the record in order to accept
the recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see
also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469
(M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987) (explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
The procedural and factual history of this matter have been detailed by
Judge Bloom in his report. Upon review, Judge Bloom’s history is supported
by the record. As such, the court adopts it as if fully set forth herein. For
purposes of this memorandum, suffice it to say that the plaintiff, now on her
third amended complaint, sets forth claims under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §621, et seq., for age discrimination
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and retaliation, as well as various state law claims, all of which arise from the
termination of her employment with the County of Lackawanna.
With respect to the plaintiff's age discrimination claim, Judge Bloom
set forth the applicable standard in his report:
The ADEA prohibits employers from discriminating against
employees based on age. Title 29, U.S.C. §623(a)(1). A plaintiff
must demonstrate that she is at least 40 years old, suffered an
adverse employment decision, is qualified for the position, and
the employer hired an employee who is sufficiently younger to
show an inference of age discrimination. Novak v. Posten Taxi
Inc., 386 F. App’x 276, 278 (3d Cir. 2010). An adverse
employment action must be a “significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing
a significant change in benefits.” Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998). Further, age must be the “but for’
cause of the adverse employment action. Hazen Paper Co. v.
Biggens, 507 U.S. 604, 610 (1993).
(Doc. 85, pp. 10-11).
As discussed by Judge Bloom, there is no dispute that the plaintiff was
at least 40 years old and that she suffered an adverse employment action
when she was terminated from her position in 2018. Moreover, even
assuming that the plaintiff was qualified for her position’, Judge Bloom found
that she had failed to set forth any evidence that her age was the “but for’
' The defendants argued that the plaintiff was not qualified for her
position.
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cause for her termination. As such, Judge Bloom concluded that the plaintiff's
age discrimination claim failed.
As to the plaintiffs ADEA retaliation claim, as Judge Bloom provided,
“(t]he ADEA prohibits retaliation against an employee who makes a
complaint based on ‘a good faith, reasonable belief that an ADEA-violation
occurred.” (Doc. 85, p. 14) (citations omitted). Here, Judge Bloom
determined that there was no evidence from which a jury could conclude that
the plaintiff ever made a complaint of age discrimination or that any such
claim was the reason for her termination. While the plaintiff claimed to have
made complaints with regard to perceived fraud and abuse within the
County, Judge Bloom found that the plaintiff's third amended complaint is
devoid of any allegations that she made any complaints that she was treated
differently because of her age. As such, Judge Bloom concluded that the
plaintiffs ADEA retaliation claim failed as well.
While the plaintiff had termed her retaliation claim as one under the
ADEA, even considering it as a First Amendment retaliation claim out of an
abundance of caution, Judge Bloom provided that “a public employee must
show that h[er] speech is protected by the First Amendment and that the
speech was a substantial or motivating factor in what is alleged to be the
employer's retaliatory action.” (Doc. 85, p. 16) (citations omitted). Even
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assuming the plaintiffs speech was protected, Judge Bloom found that,
since the defendants had provided evidence that the plaintiff was counseled
about her tardiness, excessive breaks, and performance issues as early as
a year before she made any reports to her supervisors regarding employees’
misuse of leave, there was ample evidence from which a factfinder could
conclude that the County would have taken the same action even if the
speech had not occurred. Given this, Judge Bloom concluded that any First
Amendment retaliation claim based on the plaintiff's reports of fraud and
abuse would necessarily fail.
Given Judge Bloom’s findings on the plaintiff's federal claims, he
concluded that the court should decline to exercise supplemental jurisdiction
over the plaintiffs state law claims. Judge Bloom recommends that these
state law claims be dismissed without prejudice to the plaintiff asserting the
claims in the appropriate state court.
The plaintiff has filed objections to Judge Bloom’s report and
recommendation, which consist of two documents. The first document is the
plaintiff's “objections.” (Doc. 89). In this document, the plaintiff takes issue
with various factual statements made by Judge Bloom in his report and she
provides “rebuttals” to argue that the defendants are not entitled to summary
judgment. In doing so, however, the plaintiff simply disagrees with the
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various statements without pointing to any evidence or record support. This
she may not do. The plaintiff may defeat summary judgment by pointing to
evidence in the record which creates a genuine dispute of material fact and
from which a jury could find in her favor. See E/ v. Southeastern
Pennsylvania Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007). She
may not defeat summary judgment simply by relying on her own unsupported
allegations, but must produce evidence to support her claims. Berckeley Inv.
Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). Because Judge Bloom
has pointed to specific evidence in the record which supports the findings in
his report that the defendants are entitled to summary judgment, and the
plaintiff has failed to provide any record citations or point to any evidence in
the record to support her claims, her objections will be overruled in this
regard.
As for the plaintiff's second document (Doc. 90), which she labels as a
“brief,” this is nothing more than a procedural history of her case and does
absolutely nothing to properly object to Judge Bloom's report. To the extent
this document could in any way be deemed objections, they are overruled.
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An appropriate order shall issue.
en E. MANNION
United States District Judge
DATE: August 18, 2025
21-2006-01
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