Filed: Oct. 20, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 10-20-2008 Queer v. Westmoreland Precedential or Non-Precedential: Non-Precedential Docket No. 07-3658 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Queer v. Westmoreland" (2008). 2008 Decisions. Paper 348. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/348 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 10-20-2008 Queer v. Westmoreland Precedential or Non-Precedential: Non-Precedential Docket No. 07-3658 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Queer v. Westmoreland" (2008). 2008 Decisions. Paper 348. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/348 This decision is brought to you for free and open access by the Opinions of t..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-20-2008
Queer v. Westmoreland
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3658
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Queer v. Westmoreland" (2008). 2008 Decisions. Paper 348.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/348
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-3658
____________
LANCE QUEER; INTEGRATED CARE CORPORATION,
Appellants
v.
WESTMORELAND COUNTY; CHRISTOPHER LOUGHNER;
CORRINE ZECCHINI; AUSTIN BREEGLE
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 06-cv-00325)
District Judge: Honorable Terrence F. McVerry
____________
Submitted Under Third Circuit LAR 34.1(a)
September 29, 2008
Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.
Filed: October 20, 2008
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Lance Queer and Integrated Care Corporation (ICC) appeal the order of the
District Court granting summary judgment as to their claim under 42 U.S.C. § 1983 that
Westmoreland County refused to renew ICC’s contract in retaliation for Queer’s
protected First Amendment speech. For the reasons set forth below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual and legal
history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
For each fiscal year from 1999 to 2005, ICC through its sole owner Lance Queer
entered into a one-year contract with Westmoreland County to provide therapeutic
services to special needs children ages 0-3 years old as part of the County’s participation
in the Early Intervention (EI) Program established under Part C of the Individuals With
Disabilities Education Act (IDEA). Under the IDEA, the County is required to offer
families of eligible children a choice among qualified service providers and is required to
monitor the performance of the service providers. The County’s EI Program is
administered through the County’s Mental Health and Mental Retardation Department
(MH/MR). Prior to the start of the 2005-2006 fiscal year, the County’s MH/MR
Administrator Kathleen Wohlgemuth notified Queer on April 1, 2005, that ICC’s contract
would not be renewed. Wohlgemuth informed Queer that he would have the opportunity
to meet with the County Commissioners prior to the public meeting at which a vote on
whether to renew ICC’s contract would take place.
2
The parties vigorously dispute the basis for the County’s decision not to renew
ICC’s contract. In Wohlgemuth’s notification letter to Queer, she indicates that her
nonrenewal recommendation “was based on the unacceptable content in your Plan of
Correction dated March 17, 2005.” Queer contends that the real reason ICC’s contract
was not renewed was because of comments he made to a state official in 2004. In March
2004, Queer informed a state official that the County’s MH/MR Program Specialist, Chris
Loughner, was improperly denying EI services. This criticism was brought to the
attention of the County in April 2004. In June 2004, Loughner and his supervisor,
Corrine Zecchini, the MR Program Coordinator, met with Queer to discuss various issues
pertaining to ICC, including an email in which Queer referred to a County employee as a
“she wolf”; an email sent by Queer to Loughner that contained pornography; promotional
activities conducted by Queer and ICC; and training deficiencies. Queer alleges that at
the beginning of the meeting Zecchini told him that the County was informed “by a
representative of the State that they were contacted by a staff member of [ICC] . . . and
that they felt wounded and that they wanted to find out through the front door, not the
back door.” The County nonetheless renewed ICC’s contract for the 2004-2005 fiscal
year, and although the amount of the contract was reduced by about 25%, the County later
obtained additional funding to ensure that ICC would be paid for any services it provided
beyond the contracted amount.
3
In October 2004 the County prepared a report regarding ICC’s performance in
which the County identified concerns, strengths, and compliance issues. The County
delivered the report to ICC in February 2005 and instructed ICC to provide a “Plan of
Correction” to remedy the problems identified in the report. The County also met with
Queer in March 2005 to discuss the report in an effort to ensure that Queer was aware of
the County’s concerns. Queer’s response to the monitoring report is found in a written
letter dated March 17, 2005. The County reacted with alarm to this letter and in particular
to the following reference: “IF, there is ever an [ICC] Therapist that definably
demonstrates non alignment to this item of issue, by, or through, error, or omission, or
due to a flagrant disregard, i [sic] will probably personally shoot them as this item has[.]”
Upon receipt of this letter, Zecchini shared her concerns with her supervisor,
Austin Breegle, the Deputy Administrator of the MH/MR Department. Breegle met with
Wohlgemuth who asked Breegle to recommend whether ICC’s contract should be
renewed. Breegle conducted an investigation and ultimately recommended that ICC’s
contract not be renewed. In an April 21, 2005 memorandum, Breegle listed the following
reasons for his recommendation: (1) the “she-wolf” email; (2) the pornographic email;
(3) an incident Breegle witnessed at a County meeting in October 2004 where Queer
interrupted the meeting dressed in a hula skirt and coconut bra, and proceeded to make
comments about being “lei’d by a Queer” as he placed leis around the necks of various
individuals; (4) continuing regulatory compliance issues; and (5) the March 17, 2005
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letter. Breegle noted that “[t]his lack of insight to the inappropriateness of his behavior
and results from it should not be exposed to the families and children of Westmoreland
County.” Breegle and Wohlgemuth then met with the County Commissioners and
recommended that ICC’s contract for the following year not be renewed.
Queer subsequently brought this suit in the District Court, and following the
District Court’s grant of summary judgment in favor of the County, Queer timely
appealed to this Court.
II.
The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331 and we have
jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s grant of
summary judgment is plenary. Carter v. McGrady, 292 F.3d 152, 157 (3d Cir. 2002).
Summary judgment may be granted where “there is no genuine issue as to any material
fact” and “the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). We draw “all reasonable inferences from the underlying facts in the light most
favorable to the nonmoving party,” Bailey v. United Airlines,
279 F.3d 194, 198 (3d Cir.
2002), but the nonmoving party cannot simply rely on unsupported allegations in
attempting to survive a summary judgment motion. Williams v. Borough of West Chester,
891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 325
(1986)).
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III.
To prove that the County retaliated against Queer for communicating with a state
official in March 2004, Queer must show that: (1) he engaged in protected First
Amendment speech; (2) the County responded with retaliation sufficient to deter a person
of ordinary firmness from exercising his or her rights; and (3) there was a causal
connection between the protected First Amendment speech and the retaliation. Lauren v.
Deflaminis, 480 F.3d 259, 267 (3d Cir. 2007); Estate of Smith v. Marasco,
318 F.3d 497,
512 (3d Cir. 2003). Queer can establish a causal connection by proving either “(1) an
unusually suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal
link.”
Lauren, 480 F.3d at 267. In the absence of such proof, Queer “must show that
from the ‘evidence gleaned from the record as a whole’ the trier of fact should infer
causation.”
Id. (quoting Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 281 (3d Cir.
2000)). If Queer establishes a prima facie case of retaliation, the County can defeat the
claim by demonstrating that it would have taken the same action even if Queer had not
engaged in the protected activity. Id.; Ambrose v. Twp. of Robinson,
303 F.3d 488, 493
(3d Cir. 2002).
6
Queer argues that the District Court erred by ignoring evidence that establishes a
causal nexus between Queer’s protected First Amendment speech 1 and the County’s
nonrenewal of ICC’s contract, and thus improperly granted summary judgment as to his
retaliation claim. Based on our review of the record, we cannot accept this contention.
First, there is nothing unusually suggestive about the timing between Queer’s protected
First Amendment activity and the County’s refusal to renew his contract. Queer
contacted the state official to complain of the County’s practices in March 2004 and over
a year later the County decided not to renew ICC’s contract. The fact that the County
renewed ICC’s contract for the 2004-2005 fiscal year following Queer’s exercise of his
protected speech substantially undermines Queer’s assertion that the facts present an
unusually suggestive temporal proximity. To the contrary, when we construe the facts in
the light most favorable to Queer, taking into consideration his “timeline” of events, it is
difficult to discern any temporal proximity between Queer’s protected speech in March
2004 and the County’s nonrenewal decision more than a year later, much less an
unusually suggestive temporal proximity. In April 2004 when the County learned of
Queer’s contact with the state official it did not immediately terminate ICC’s then-
existing contract, nor did it decline to renew ICC’s contract for the following year; rather
1
Although the record reveals a dispute as to whether Queer actually contacted a
state official, for the purposes of this appeal only, the County does not challenge Queer’s
assertion that he exercised his First Amendment right to free speech. Therefore, we do
not analyze the first element of a retaliation claim.
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it honored its contract with ICC for the remainder of the 2003-2004 fiscal year and for an
entire year after that. If there is any event in the record where the timing could be
characterized as unusually suggestive of the County’s cause for not renewing ICC’s
contract, it is Queer’s March 17 “Plan of Correction” letter, which the County received a
mere two weeks before reaching its nonrenewal decision, not Queer’s protected activity a
year earlier.
Second, the record does not reveal a pattern of antagonism that, when coupled with
the timing of Queer’s protected speech and the County’s nonrenewal decision, establishes
a causal link between the two. Queer attempts to demonstrate a pattern of antagonism by
pointing to (1) his June 2004 meeting with the County at which time MH/MR Department
employees told him they “felt wounded” by the accusations he made to the state and “that
they wanted to find out through the front door, not the back door,” about such concerns;
and (2) the “irregular” and “extensive” review of ICC that the County undertook
beginning in October 2004. But Queer’s argument that these incidents demonstrate the
County’s animus towards him is diminished by both his own description of the June 2004
meeting with the County, which he says was “very pleasant,” and the fact that the County
is required by law to monitor its EI service providers. Thus, it is a stretch to characterize
the June 2004 meeting and the October 2004 review as antagonistic, and in any event
these occurrences certainly do not establish a pattern of antagonism that gives rise to an
8
inference of a causal connection between Queer’s protected activity in March 2004 and
the County’s nonrenewal decision in April 2005.
Third, the record as a whole, including a review of circumstantial evidence that
might suggest that the County’s stated reasons for nonrenewal were pretextual, does not
establish a causal connection. There simply is not enough evidence from the record as a
whole for a reasonable jury to infer that the cause for the County’s nonrenewal decision
was Queer’s exercise of his free speech rights one year earlier. Although Queer sets forth
unsupported assertions, conclusory allegations, and mere suspicions of pretext on the part
of the County, this is insufficient to survive a summary judgment motion, see Williams,
891 F.2d at 460, and thus Queer fails to carry his burden of demonstrating a causal
connection between his protected activity and the County’s alleged retaliatory action.
Even if Queer could establish a causal connection, his claim would nonetheless fail
because the record demonstrates that the County would have still decided not to renew
ICC’s contract even without a retaliatory motive. Contrary to the conflated arguments
made by Queer, this step in the analysis only arises after the plaintiff demonstrates a
prima facie case of retaliation. Queer failed to establish the prima facie elements of
retaliation, but even if he had, the County would still prevail because it can easily show
that its decision not to renew ICC’s contract would have been made in the absence of
Queer’s protected activity. The County had ample, documented reasons for not renewing
ICC’s contract including Queer’s inappropriate emails and inappropriate behavior, ICC’s
9
noncompliance with regulations, and most notably, Queer’s admittedly “unprofessional”
March 17, 2005 letter in which he made a reference to personally shooting his employees
if they failed to meet expectations. This letter alone provides a legitimate,
nondiscriminatory reason for the County’s decision not to continue to allow Queer and
ICC access to the families and young children who are the recipients of EI services.
Construing the facts in a light most favorable to Queer and drawing all reasonable
inferences in his favor, we cannot conclude that the County’s decision with respect to
ICC’s contract would have been different if Queer had not engaged in protected speech a
year earlier but had provided the County with the same “woefully inadequate and
unprofessional” Plan of Correction. Therefore, Queer’s First Amendment retaliation
claim was properly dismissed.
Queer also contends that the District Court erred in dismissing his claim against
two particular County employees – Loughner and Zecchini. As we have previously
noted, “[a] defendant in a civil rights action must have personal involvement in the
alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Personal
involvement can be shown when a supervisor either personally directs the retaliatory
action or has actual knowledge of, and acquiesces in, the retaliatory action.
Id. With
respect to Loughner and Zecchini, the record does not reflect that they were personally
involved in the decision not to renew ICC’s contract. To the contrary, the record reflects
that these individuals were left out of the decisionmaking process. Thus, in addition to
10
the problems with Queer’s claim that we have already discussed, he faces an additional
obstacle in bringing suit against these individuals in light of the fact that the record does
not establish that either Loughner or Zecchini were personally involved in the County’s
decision not to renew ICC’s contract.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
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