                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                NOT PRECEDENTIAL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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