Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-14-2005

Grigsby v. Kane
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1707




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                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 05-1707


                                KAREN GRIGSBY;
                               JEFFREY T. BROWN

                                          v.

      YVETTE KANE; ROBERT J. DESOUSA; ROGER CAFFIER; GERALD M.
      MACKAREVICH; RUTH D. DUNNEWOLD; THE PA ASSOCIATION OF
 REALTORS; PAUL A. TUFANO; C. MICHAEL WEAVER, each individually, and in
their official capacities; CAROLYN E. JOHNSON, in her personal and official capacity;
  LEGAL AID OF CHESTER COUNTY, INC., a nonprofit corporation; ROBERT F.
    ADAMS, in his personal and official capacity; GAWTHROP, GREENWOOD &
HALSTED, a personal corporation; KALOGREDIS, TSOULES AND SWEENEY LTD.;
                     DAVID R. DEARDON, in his personal capacity;
                             CHARLES W. RUBENDALL, II

                                               Karen Grigsby,

                                                      Appellant


                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                             (D.C. Civil No. 99-cv-2083)
                    District Judge: Honorable Gregory M. Sleet


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 6, 2005

       Before: RENDELL, FISHER, and VAN ANTWERPEN, Circuit Judges.

                             (Filed: December 14, 2005)
                               OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Plaintiff Karen R. Grigsby appeals from the District Court’s grant of summary

judgment in favor of all Defendants in this First Amendment retaliation and racial

discrimination employment suit brought by Grigsby pursuant to 42 U.S.C. §§ 1981 and

1983.1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.

                                             I.

       We construe the facts and inferences therefrom in the light most favorable to non-

movant Grigsby. On December 2, 1999, Grigsby filed a pro se complaint alleging retaliation

in violation of 42 U.S.C. § 1983. She amended her complaint on March 30, 2000 to also

allege racial discrimination in violation of 42 U.S.C. § 1981, and amended the complaint

again on June 18, 2001. She timely appealed from the February 2, 2005 order of the District

Court granting Defendants’ motion for summary judgment and dismissing with prejudice

all of Grigsby’s claims.

       The Pennsylvania Office of General Counsel, Bureau of Professional Occupational

Affairs, hired Grigsby as an attorney in 1987. She was promoted twice in the next six years,

achieving the highest possible non-supervisory status, “Attorney III.” Relevant to her § 1983


   1
     Grigsby appeals the District Court’s grant of summary judgment and dismissal of
her complaint only as against defendants Kane, Tufano, DeSousa, Mackarevich, Caffier,
and Weaver.
                                             2
retaliation claim, Grigsby was assigned a licensing case in 1996 involving a dentist with a

communicable disease. Grigsby consulted a medical expert who opined that, despite

treatment, the dentist was apt to revert to infectious status. Her supervisor at the time,

Caffier, responded by ordering Grigsby to instead rely on a second specialist and the opinion

of the dentist’s own doctor. Grigsby alleges this was a “political fix” because the dentist was

a large financial contributor to the then-Governor’s administration. During the case, Grigsby

objected in writing to Caffier several times and refused to sign off on the dentist’s final

license; as a result, she alleges, Caffier assigned her too few cases, causing her to appear

deficient under the Bureau’s “quota” system for evaluating attorney performance. Caffier

did this, she claims, even though DeSousa ordered that she be assigned more cases, so that

she could have an opportunity to prove herself under the quota system.

       Relevant to her § 1981 racial discrimination claim, Grigsby’s supervisors were

Weaver and Mackarevich from 1991 through 1994 and 1994 through November 1995,

respectively. Caffier then became her superior (along with DeSousa, Tufano, and Kane,

indirectly, through the administrative hierarchy) until her termination in June, 1998. Caffier

and DeSousa each had a role in the “quota” evaluation system that Grigsby contends was

pretextually manipulated; each had at least potential knowledge that three Causasian

attorneys in the Bureau received transfers out from under Caffier’s supervision and that their

reviews improved thereafter; and each had at least potential knowledge that a fourth

Caucasian attorney was allowed a year to improve after receiving the same written

disciplinary notice that Grigsby received on June 2, 1998, or nine days before she was

                                              3
terminated. Next, in addition to Caffier’s conduct in the dentist licensing case, described

above, the record shows DeSousa did not promote African-American attorneys in the Bureau

during his tenure as Chief Counsel for Pennsylvania’s Department of State, and once

commented that Grigsby was sitting “in the back of the bus” when he observed her sitting

with other African-Americans near the back of the room at a meeting. As to Tufano, the

General Counsel for the Commonwealth at the time, the record shows that he approved

Grigsby’s termination and replaced her with a Caucasian attorney. Finally, as to Grigsby’s

direct supervisors prior to Caffier, the record shows that Mackarevich maintained a

professional distance from Grigsby and allegedly avoided assigning her complex cases, that

Weaver similarly did not assign her complex cases, and that Weaver made comments to

others about not wanting African Americans to work in Pennsylvania’s state government.2

       The record also shows that Grigsby received either “needs improvement” or subpar

performance reviews starting in mid-1995; specifically, of some eleven annual and interim

reviews issued between mid-1995 and her termination on June 11, 1998, some seven

articulated concerns about Grigsby’s work product (both substantive legal errors and

proofreading problems), productivity, and ability to work independently.

                                            II.

       We review de novo the District Court’s decision to grant summary judgment, Blair


   2
     Here, the record evidence was provided by the deposition testimony of co-plaintiff
Jeffrey T. Brown. Mr. Brown filed suit in conjunction with Ms. Grigsby, alleging similar
claims against some of the Defendants. His claims were dismissed with prejudice by the
District Court by order dated February 9, 2005, and he did not appeal from that order.
                                            4
v. Scott Specialty Gases, 

, 602-03 (3d Cir. 2001), applying the same standard

as the District Court to determine whether there were genuine issues for trial and whether,

viewing the facts in the light most favorable to Grigsby, Defendants were entitled to

judgment as a matter of law. See Morton Intern., Inc. v. A.E. Staley Mfg. Co., 

, 680 (3d Cir. 2003); Curinga v. City of Clairton, 

, 307 n.1 (3d Cir.

2004). We make an independent constitutional judgment to determine whether the speech

involved was constitutionally protected. Connick v. Myers, 

, 150 n.10

(1983); Watters v. City of Philadelphia, 

, 891 (3d Cir. 1995).

                                             III.

       We first address Grigsby’s § 1983 retaliation claim, tracing Curinga’s recent

discussion of the applicable law. “Public employees have a First Amendment right to speak

freely on matters of public concern.” 

(citing Pickering v. Board

of Educ., 

, 571-72 (1968)). “But there is protection only for speech in matters

of public concern” that “is not likely to disrupt the efficient operation of the workplace.” 

at 568; 

). Under a Pickering analysis, there are

three factors to consider in a public employee’s retaliation claim for engaging in protected

activity.3 First, as discussed, “the employee must demonstrate that the speech involves a


   3
      As we observed in Curinga, “a separate analysis for politically motivated
discharges of public employees” exists pursuant to the Supreme Court’s decision in Elrod
v. Burns, 

(1976) and Branti v. Finkel, 

(1980). 

. Under this separate analysis, while the Court has “restricted the dismissal of
public employees for partisan reasons to protect the employees’ freedom of political
belief and association . . . [and] restricted the use of patronage to insure the efficiency of
                                               5
matter of public concern and the employee’s interest in the speech outweighs the

government’s employer’s countervailing interest in providing efficient and effective services

to the public. Next, the speech must have been a substantial or motivating factor in the

alleged retaliatory action. Finally, the employer can show that it would have taken the

adverse action even if the employee had not engaged in the protected conduct. The second

and third factors are questions of fact, while the first factor is a question of law.” 

.

       “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.”

(internal quotation and citations omitted). Yet here, even

assuming that Grigsby so spoke (the record shows only that Grigsby wrote internal

memoranda to Caffier and refused to sign off on internal Bureau paperwork authorizing the

the dentist’s ultimate license), the District Court did not err in concluding that Grigsby cannot

prevail in light of the second prong of Pickering’s threshold inquiry, which asks, as stated,

whether Grigsby’s speech interest outweighs the countervailing interest of her supervisors

and the Bureau in providing “efficient and effective services to the public.” 

. Specifically, the Pickering balancing test requires determination of “‘whether


the public workplace, . . . . [it has] allowed dismissals based on political affiliation for
‘policymaking’ positions.” 

District Court correctly concluded that,
although both the Pickering and Elrod lines of jurisprudence must be considered in
certain First Amendment retaliation cases, the Pickering balancing test controls here,
where political affiliation is not at issue and the speech is alleged to have impaired a close
supervisory or working relationship. See 

.
                                               6
the statement impairs discipline by superiors or harmony among co-workers, has a

detrimental impact on close working relationships for which personal loyalty and confidence

are necessary, or impedes the performance of the speaker's duties or interferes with the

regular operation of the enterprise.’” 

(quoting Rankin v. McPherson, 

,

388 (1987)). As such, consistent with the Supreme Court’s requirement that “[w]hen close

working relationships are essential to fulfilling public responsibilities, a wide degree of

deference to the employer’s judgment is appropriate,” 

, we have

previously held that “the crucial variant in the balance appears to [be] the hierarchical

proximity of the criticizing employee to the person or body criticized.” Sprague v.

Fitzpatrick, 

, 564 (3d Cir. 1976).

       In speaking here, Grigsby plainly acted not as a private citizen, but rather in her

capacity as a senior Bureau attorney assigned to, and in charge of, a complex and difficult

licensing case. The record also undisputably shows that her speech directly challenged her

immediate supervisor, Caffier, about that case. Even construed in the light most favorable

to Grigsby, the record further presents a clear and profound disruption in the working

relationship between Grigsby and Caffier that impeded the Bureau’s efficiency and

effectiveness. See, e.g., 

. As such, Grigsby’s speech interest

was outweighed as a matter of law by her employer’s interest in an effective and efficient

workplace. See id.; see also 

.4 Accordingly, we will affirm the


   4
     Our conclusion is reinforced by the undisputed record evidence that, as an employee
with “Attorney III” status, Grigsby’s role in the Bureau was not ministerial. The
                                             7
decision of the District Court on this prong of the Pickering inquiry.

                                             IV.

       Next, we analyze Grigsby’s related § 42 U.S.C. § 1981 claim of employment

discrimination on the basis of race. As the District Court correctly determined, the applicable

legal framework was set out in McDonnell Douglas Corp. v. Green, 

(1973).

Under this test, Grigsby had the burden of making a prima facie case of discrimination by

showing (1) that she is a member of a protected class, (2) that she was subject to an adverse

employment action, and (3) that similarly situated members of other racial classes were

treated more favorably. Here, Defendants concede that Grigsby makes out a prima facie

case, but challenge the continuing violation theory she advances to reach conduct time-barred

by the applicable statute of limitations. Absent application of such a theory, the record

evidence with respect to Weaver and Mackarevich, including the corroborating testimony of

Mr. Brown, would be precluded. For the reasons we discuss infra, Grigsby’s § 1981 claim

lacks substantive merit even if all of her evidence is considered. Consequently, we will

assume, without deciding, that a continuing violation theory applies in this case.

       We turn to the substantive analysis set forth in McDonnell Douglas and its progeny.




Pickering test “takes into account the extent of authority entailed in the employee's
position,” 

(citing 

), and thus it appears
vital that Grigsby, having the highest-ranking non-supervisory status in the Bureau,
maintain “a close working relationship” with her supervisor, Caffier, as well as DeSousa
and Tufano, “to effectively implement their policies.” 

(citing

). Under these facts, the Bureau’s interest is strong and
outweighs Grigsby’s speech interest. 

as discussed, the Supreme Court established that, should a plaintiff successfully make

out a prima facie case, the burden shifts to the defendant “to articulate some legitimate,

nondiscriminatory reason” for the adverse employment action. 

“[S]hould the

defendant carry this burden, the plaintiff then must have an opportunity to prove . . . the

legitimate reasons offered by the defendant . . . were a pretext for discrimination.” Jones v.

Sch. Dist. of Phila., 

, 410 (3d Cir. 1999) (citing Texas Dep't of Cmty. Affairs v.

Burdine, 

, 252-53 (1981)).5 With Grigsby having made out a prima facie case,

the presumption arises that Defendants discriminated against her, placing the burden on

Defendants to present a nondiscriminatory reason for their decision to terminate Grigsby.

McDonnell 

. At this second step, “the defendant must clearly set

forth, through the introduction of admissible evidence, reasons for its actions, which, if

believed by the trier of fact, would support a finding that unlawful discrimination was not the

cause of the employment action.” St. Mary's Honor Ctr. v. Hicks, 

, 507 (1993)

(internal citations and quotations omitted) (emphasis in original). Here, as summarized

above, the summary judgment record contains ample evidence that, if believed by a fact

finder, would reasonably support a finding that Grigsby was terminated for subpar work

performance in the mid-1995 to mid-1998 time period.


   5
    Grigsby correctly observes that, under Weldon v. Kraft, Inc., 

(3d Cir.
1990), “[a] plaintiff need not carry th[e] McDonnell Douglas burden . . . to withstand a
motion for summary judgment.” 

(emphasis added). However, in so stating, she
appears to conflate her burden for prevailing on the claim with her burden at summary
judgment, which is to demonstrate a “genuine issue as to any material fact” relevant to the
McDonnell Douglas analysis. See 

having presented a legitimate, nondiscriminatory reason for terminating

Grigsby, the McDonnell Douglas burden shifts back to her to present pretext evidence that

either (1) casts doubt upon each of the reasons offered by Defendants so that a fact-finder

could reasonably conclude that each was a fabrication; or (2) allows the fact-finder to infer

that discrimination was more likely than not the cause for the employment action. See

Fuentes v. Perskie, 

, 761 (3d Cir.1994). Here, Grigsby has not made either

showing. First, her attempt to cast doubt upon the Defendants’ multiple reasons for

terminating her is limited only to an assertion that “she was actually directed by them” to do

things on cases “that would demonstrate incompetency” — such as, she argues, being

ordered to issue a license to a dentist with a communicable disease. Br. at 35. However,

neither this argument nor Grigsby’s evidence at summary judgment actually casts doubt upon

the specific reasons for termination as articulated by her superiors. The record shows

Grigsby’s supervisors were specifically concerned about her poor written work product

(both in terms of substantive legal errors and proofreading problems), low productivity, and

an inability to work independently. While the record construed in the light most favorable

to Grigsby allows the conclusion that she has cast doubt on her low productivity (because

Caffier, Mackarevich, and Weaver did not assign her enough cases and/or only menial cases,

causing her to appear deficient under the quota system), nothing in the record casts doubt on

the articulated concerns of poor written work product and an inability to work independently,

which are reflected in the record through multiple specific performance evaluations. Second,

even “[i]f a factfinder were to credit [Grigsby’s] testimony” and the corroborating testimony

                                             10
of Brown, it could not, on this record, infer that discrimination was more likely than not the

cause for the employment action. See, e.g., 

; see also 

. This conclusion is supported not only by our analysis thus far, but also by our

observation of the following additional points. Despite working from 1991 to 1994 for the

allegedly discriminatory Weaver, Grigsby received a promotion under that supervisor in

1993, elevating her to the highest non-supervisory status possible in the Bureau. And despite

being allegedly assigned to only “routine” cases since 1991, purportedly to thwart her

professional growth, she was promoted twice in six years and was assigned to an unusually

challenging case, the dentist licensing case, in 1996. Just as the record in this case precludes

a trier of fact from finding pretext, it precludes a trier of fact from concluding discrimination

was more likely than not the cause for Grigsby’s termination in 1998. Accordingly, summary

judgment for Defendants on Grigsby’s § 1981 claim was also appropriate.

       For the foregoing reasons, the order of the District Court dated February 2, 2005 is

affirmed.




                                              11