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


2-5-2007

Regan v. Lackawanna Housing
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2355




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Recommended Citation
"Regan v. Lackawanna Housing" (2007). 2007 Decisions. Paper 1681.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1681


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-2355


                                  FRANK M. REGAN,

                                             Appellant

                                            v.

 LACKAWANNA COUNTY HOUSING AUTHORITY, ROGER SILLNER; KAREN
 MANCUS; CARL REMUS; ROBERT DOUGHERTY; JOSEPH BITCOLA; JAMES
  TALERICO; JOSEPH SEBASTIANELLI; DAVID RINALDI; *BARBARA RIGO;
 COUNTY OF LACKAWANNA; LACKAWANNA COUNTY COMMISSIONERS,
        JOSEPH CORCORAN, RAYMOND ALBERIGI, JOHN SENIO

                      (*Dismissed per the Court’s 11/16/04 Order)


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 00-cv-01378)

                       District Judge: Honorable John E. Jones, III



                      Submitted Under Third Circuit LAR 34.1(a),
                                 December 13, 2006

 Before: FUENTES and VAN ANTWERPEN, Circuit Judges, and PADOVA,* District
                               Judge.

                                (Filed: February 5, 2007)


      *
        Honorable John R. Padova, District Judge for the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
                                      ______________

                                         OPINION
                                      ______________


FUENTES, Circuit Judge.

       Appellant Frank Regan sued his former employer Lackawanna County Housing

Authority and individuals who he believed played a role in his allegedly wrongful

discharge. Regan has asserted numerous claims including procedural due process and

First Amendment retaliation claims, under 42 U.S.C. § 1983, and a claim under Title VII.

He now appeals two District Court orders dismissing all of his claims pursuant to Fed. R.

Civ. P. 12(b)(6) and on summary judgment. Inasmuch as we write this memorandum

opinion only for the convenience of the parties who are familiar with the facts, we need

not set forth the background of the case at length.

       At the time of his discharge, Regan had admitted to an independent investigator

that he had made a sexually suggestive remark to a 16-year-old summer intern at the

Housing Authority.1 The Housing Authority did not accuse Regan of sexually harassing

the intern, but did require that he attend “sensitivity training” — a directive that Regan

refused to comply with for nearly four months before he was finally terminated. At the

core of all the claims in this case are the parties’ competing accounts of the main reason


       1
          Regan admitted that he told the intern, “I have a tattoo in a private place,” and
then revealed a Green Bay Packers decal affixed to his tooth. (Supp. App. at 542.) He
testified that he may have also said “[d]o you want to see it,” before he showed her his
tooth. 

Regan was terminated. Appellees maintain that Regan was terminated because of

his refusal to attend the training, a reasonable employment-related request. Regan

maintains that he was terminated because the intern leveled unsubstantiated allegations of

sexual harassment and because of his political beliefs.

       In two extensive written opinions, the District Court dismissed this case essentially

because Regan’s take on the relevant events is contrary to the preclusive factual findings

of the Pennsylvania Civil Service Commission and is otherwise wholly unsubstantiated

by the record.2 While this was the heart of the Court’s reasoning, it gave ample attention

to all of Regan’s legal claims, providing detailed reasons for dismissing each one. On

appeal, Regan contends that the District Court erred.

       The Third Circuit reviews an order granting summary judgment de novo, applying

the same standard used by the District Court. Sheet Metal Workers’ Int’l Assoc. Local 19

v. Herre Bros., Inc., 

, 239 (3d Cir. 1999). A grant of summary judgment is

appropriate where the pleadings, depositions, answers to interrogatories, admissions, and


       2
         Defendants’ 2001 Motion to Dismiss before Judge Vanaskie requested relief
under Fed. R. Civ. P. 12(b)(6) or in the alternative on summary judgment. Both motions
rested on the ground that an unappealed decision of the Pennsylvania Civil Service
Commission, which determined Regan had been dismissed for “just cause,” precluded all
of Regan’s claims. Judge Vanaskie granted the motion in part and denied it in part, but
did not specify whether he was deciding pursuant to Rule 12(b)(6) or on summary
judgment pursuant to Rule 56(c). Because Judge Vanaskie determined that the
Commission’s factual findings, when given the appropriate preclusive effect, meant that
Regan could not prove certain allegations on the face of his complaint, we will treat the
2001 order as a disposition under Rule 12(b)(6). Yet, had the 2001 motion been decided
under Rule 56 our holding would be the same. There is no question that the 2004 order
and opinion were decided on summary judgment.

                                             3
affidavits show there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “We exercise plenary

review over the grant of a motion to dismiss.” Brown v. Card Service Center, 

, 452 (3d Cir. 2006). “When considering an appeal from a Rule 12(b)(6) dismissal,

we must accept all well-pled allegations in the complaint as true and draw all reasonable

inferences in favor of the non-moving party.” 

“we must determine whether

the plaintiff may be entitled to relief under any reasonable reading of the complaint.” 

review of the briefs and appendices submitted by the parties, which

include relevant deposition transcripts, we find no basis for disturbing the District Court’s

rulings. Therefore, we will affirm the judgment for substantially the same reasons set

forth by District Judge Jones in his memorandum opinion dated April 16, 2004, and those

set forth in Judge Vanaskie’s opinion filed on November 29, 2001.




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