Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-19-2007

Story v. Mechling
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1601




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"Story v. Mechling" (2007). 2007 Decisions. Paper 1763.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1763


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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 ___________

                                 No. 06-1601
                                 ___________

                              LT. ERIC STORY,

                                  Appellant

                                      v.

                  NEAL MECHLING; STEVE GAVORCHIK;
                   CO. ED. JOHNSTON; DOREEN PLAVI;
                   ROBERT J. KERN; SCI-WAYNESBURG
                              ___________

                 On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                            (D.C. Civil No. 02-cv-01432)
               District Judge: The Honorable Terrence F. McVerry
                                   ___________

                   Submitted Under Third Circuit LAR 34.1(a)
                               October 27, 2006

             Before: SMITH, WEIS, and NYGAARD, Circuit Judges.


                           (Filed: January 19, 2007)
                                 ___________

                          OPINION OF THE COURT
                               ___________



NYGAARD, Circuit Judge.
                                              I.

       Lieutenant Eric Story, a supervisor at the State Correctional Institute at

Waynesburg, Pennsylvania, reported alleged prison policy violations by Corrections

Officer Ed Johnston to his superiors in 1999. Over the next four years, Story alleges,

prison officials denied him leave and transfer to another prison, failed to investigate

threats against him from other employees, and manipulated prison policies to harass him.

In addition, Story maintains Johnston physically attacked him at the prison.

       During 2001, Story filed three administrative complaints against prison officials

with the Pennsylvania Human Relations Commission. On August 19, 2002, Story filed a

complaint with the U.S. District Court. He sought damages against prison officials under

Title VII of the Civil Rights Act and 42 U.S.C. §1983 for retaliating against him for

engaging in activity protected by the Civil Rights Act and the First Amendment,

respectively. He also sought damages against Johnston for assault under Pennsylvania

law.

       Following discovery, the defendants moved for summary judgment. The District

Court concluded Story failed to exhaust available administrative remedies before filing

his Title VII claim, and that his retaliation claims failed because he failed to establish a

causal link between his administrative complaints and alleged mistreatment. In addition,

the District Court concluded Johnston was protected by Pennsylvania’s sovereign

immunity law. The District Court granted summary judgment in favor of the defendants

and Story appealed. We will affirm.

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                                              II.

                                              A.

       Before filing a Title VII suit, an employee charging an employer with

discrimination must file a complaint with the Pennsylvania Human Rights Commission

(PHRC) within 300 days of the alleged discriminatory act, and allow 180 days to pass to

permit the agency to resolve the dispute without litigation. 42 U.S.C.A. §2000e-5(e)(1)

(2003); Burgh v. Borough Council of Montrose, 

, 470 (3d Cir. 2001). A

plaintiff must obtain a “right to sue” letter from the agency before filing a complaint with

the District Court. 

agency fails to take action after the 180-day period, the

plaintiff may request a “right to sue” letter, and the agency must promptly provide one.

omitted).

       Story maintains he requested a “right to sue” letter, but the EEOC failed to notify

him regarding the results of its investigation until it issued the letter on November 4,

2002. See 42 U.S.C.A. §2000e-5(f)(1) (2003). However, he has provided no evidence he

requested the letter, nor any evidence of when he did so. Exhaustion is a non-

jurisdictional requirement subject to equitable exceptions. 

.

Nevertheless, Story did not provide the District Court with any basis for excusing his

failure to exhaust. Hence, he cannot proceed with his Title VII claim. 

also find no error in the District Court’s conclusion that Story failed to state a

prima facie retaliation claim under §1983. To prevail on a First Amendment retaliation

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claim under §1983, Story must establish 1) he engaged in protected speech; 2) his interest

in the protected speech outweighs the Department of Corrections’ countervailing interest

in carrying out its services efficiently; and 3) the protected activity was a substantial or

motivating factor in the alleged retaliatory action. Baldassare v. New Jersey, 

, 194-95 (3d Cir. 2001).

       Assuming, arguendo, Story’s PHRC complaints constituted protected speech, Hill

v. Borough of Kutztown, 

, 242 n. 24 (3d Cir. 2006), the record indicates that

most of the prison officials’ alleged misconduct took place either before he filed his

complaints, or more than two years after he did so.1 The District Court properly

concluded Story failed to show a causal link between his PHRC filings and the prison

officials’ alleged misconduct.




                                              C.

       Story’s assault claim against Corrections Officer Johnston also fails. Pennsylvania

generally bars damages suits against state agency employees when they are acting within

the scope of their employment. LaFrankie v. Miklich, 

, 1148 (Pa. Commw.


1.       On appeal, Story posits he began to engage in protected activity when he made
complaints to prison officials in 1999, rather than in 2001, when he filed his complaints
with the PHRC. Story never made this assertion before the District Court; hence it is
waived. Brown v. Phillip Morris, Inc., 

, 799 (3d Cir. 2001).

                                               4
Ct. 1992). Johnston cannot be held liable for damages arising out of an intentional tort.

. In addition, his alleged assault of Story does not fall within

one of the statutory exceptions to sovereign immunity under Pennsylvania law. See 42

PA. CONS. STAT. ANN. §8522(b) (West 1998). We conclude that the District Court

properly found Johnston was acting within the scope of his employment when he came

into physical contact with Story, and is entitled to sovereign immunity under

Pennsylvania law.

                                            III.

       The District Court properly concluded that Story failed to establish a causal link

between his administrative complaints and alleged mistreatment. In addition, the District

Court correctly held that Pennsylvania law bars Story’s assault claim against Johnston.

We will affirm the District Court’s order granting summary judgment in favor of the

defendants.




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