Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-14-2007
Gudalefsky v. PA Dept of Transp
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1505
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1505
CHERLENE GUDALEFSKY,
Appellant
v.
PA DEPARTMENT OF TRANSPORTATION
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 05-cv-0867
(Honorable John E. Jones III)
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 5, 2007
Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges
(Filed September 14, 2007)
OPINION OF THE COURT
PER CURIAM.
Appellant, Cherlene Gudalefsky, proceeding pro se, appeals from the District
Court’s order granting Appellee’s motion for summary judgment. For the reasons that
follow, we will affirm.
Appellant filed a civil rights complaint, alleging that she was demoted from her
position with the Pennsylvania Department of Transportation in retaliation for filing a
complaint with the Equal Employment Opportunity Commission (“EEOC”). Appellee
filed a motion to dismiss, or, in the alternative, a motion for summary judgment. The
District Court notified the parties that the motion would be treated as a motion for
summary judgment and gave Appellant an opportunity to submit affidavits and supporting
documents. Appellant submitted two unsigned documents, which attempted to clarify her
complaint. The District Court liberally construed these documents as a brief in opposition
to the motion for summary judgment. After reviewing Appellee’s motion and supporting
documentation, the District Court granted Appellee’s motion for summary judgment.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of
the District Court’s order granting summary judgment is plenary. Kreimer v. Bureau of
Police for the Town of Morristown, 958 F.2d 1242, 1250 (3d Cir. 1992). Summary
judgment may be granted only 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).
In a claim for retaliation, the plaintiff must first prove that conduct in question is
protected by the First Amendment. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d
Cir. 2006). Next, the plaintiff must demonstrate “that the protected activity was a
substantial factor in the alleged retaliatory action.” Id. Once the plaintiff demonstrates
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that her exercise of a constitutional right was a substantial factor in the alleged retaliatory
action, the defendant may still prevail by proving that it would have taken the same
adverse action absent the protected conduct. Id. at n.23.
Here, Appellee’s motion for summary judgment is supported by a declaration from
Appellant’s immediate supervisor, Kennedy Tripp. In his declaration Tripp states that
Appellant was demoted because she received two unsatisfactory employee performance
reviews. (Def.’s. Ex. F to Mot. for Summ. J.) Furthermore, Tripp states that when he
conducted Appellant’s performance reviews, he was unaware that Appellant had
previously filed a complaint with the EEOC for discrimination. (Id.)
It is a well settled principle of law that, when a party files a properly supported
motion for summary judgment, an adverse party may not rest upon the mere allegations in
the pleadings. Fed. R. Civ. P. 56(e). After Appellee filed its motion for summary
judgment, Appellant was required, by affidavit or as otherwise provided in Fed. R. Civ.
P. 56, “to set forth specific facts showing that there is a genuine issue for trial.” Id.
Appellant failed to do so.
Because Tripp was unaware that Appellant had filed a complaint with the EEOC at
the time he conducted her performance reviews and because Appellant was demoted
because of her unsatisfactory performance, the District Court properly granted Appellee’s
motion for summary judgment.
For the foregoing reasons, we will affirm the judgment of the District Court.
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