                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 10-3412


                             JOAN M. CICCHIELLO,

                                                      Appellant

                                         v.

*SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS; ROBERT D.
   SHANNON, Superintendent, SCI Frackville; THOMAS KOWALSKY, Personnel
Director, SCI Frackville; MARIROSA LAMAS, Deputy Superintendent, SCI Frackville;
MICHAEL WENEROWICZ, Deputy Superintendent, SCI Frackville; DONNA JONES,
                Correctional Health Care Administrator, SCI Frackville

                     *(Pursuant to Rule 43(c), Fed. R. App. P.)


                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                             (D. C. No. 3:07-cv-02338)
                   District Judge: Honorable James M. Munley


                     Submitted under Third Circuit LAR 34.1
                               on March 18, 2011

             Before: BARRY, CHAGARES and ROTH, Circuit Judges


                         (Opinion filed: January 20, 2012)
                                      OPINION


ROTH, Circuit Judge:

       Joan M. Cicchiello appeals the District Court’s order granting defendants’ motion

for summary judgment on Cicchiello’s 42 U.S.C. § 1983 claim, which alleged that her

termination by defendants violated her First and Fourteenth Amendment rights and that

she was wrongfully terminated in violation of public policy. 1 For the reasons that follow,

we will affirm the judgment of the District Court.

I. Factual Background

       Because we write primarily for the parties, we will only briefly discuss the facts

here. This action arises from Cicchiello’s termination from her position as a registered

nurse at the State Correctional Institution at Frackville, Pennsylvania (SCI-Frackville).

As a registered nurse, Cicchiello dispensed medications to inmates. Cicchiello believed

that, as part of her licensing requirements, she was responsible for reporting nursing

violations to her employer, the DOC. On May 19, 2006, Cicchiello reported at a

labor/management meeting that nurses at SCI-Frackville were violating DOC policy and


       1
        All defendants are current or retired employees of the Pennsylvania Department
of Corrections (DOC). Defendants include Jeffrey A. Beard, Secretary of the DOC;
Robert D. Shannon, Superintendent of SCI-Frackville until his retirement in September
2009; Thomas Kowalsky, Personnel Director of SCI-Frackville; Marirosa Lamas, Deputy
Superintendent for Centralized Services of SCI-Frackville from August 2005 to
September 2006; Michael Wenerowicz, former Deputy Superintendent for Centralized
Services and current Superintendent of CSI-Frackville; and Donna Jones, Nursing
Supervisor and appellant’s immediate supervisor during the time period prior to
appellant’s termination.
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nurse licensing requirements by dispensing expired medications. Cicchiello’s report was

confirmed by two named defendants and the DOC instituted a new policy to prevent

repeat violations.

       On October 27, 2006, the prison investigated Cicchiello regarding violations of the

new DOC policy. On October 29 and 30, Cicchiello filed separate complaints against

Tracy Frantz, one alleging that Frantz repackaged medications without a pharmacology

license in violation of DOC policy and nurse licensing requirements, and the other

alleging that Frantz attended work “booze sick.” Cicchiello, herself, was the subject of

numerous complaints. On November 1, 2006, Eileen Motuk reported inappropriate

comments made by Cicchiello. According to Motuk, Cicchiello stated that nurse

practitioner Pavlock “is part of this and someday [Pavlock will] be paying [Cicchiello]

rent for her house because she’ll lose it,” presumably referring to Cicchiello’s intention to

retaliate against Pavlock. Motuk also reported that Cicchiello made a threatening remark

when she stated that “her boss [at a former job] had an aneurysm and died from all the

stress [Cicchiello] put her through.” On November 2, 2006, defendants Jones and

Wenerowicz told Cicchiello that some of her inappropriate comments were causing a

hostile work environment in the Medical area. Defendant Wenerowicz informed

Cicchiello that if her behavior continued, she would be held accountable for her actions.

According to Wenerowicz, Cicchiello stated that she understood her job

description/duties and would not go outside her assigned duties and that “she would not

make anymore inappropriate comments to staff.”

       On November 7, 2006, Cicchiello was notified that she was suspended pending a

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fact-finding investigation into “the staff complaints and the ongoing investigation into

dispensing medication without a valid order.” Cicchiello, however, contends that her

suspension was in retaliation for her complaints about Frantz. A Pre-Disciplinary

Conference (PDC) was held on December 11, 2006, and the PDC determined that

Cicchiello was guilty of the two charges. The PDC also concluded that Cicchiello had

violated three sections of the DOC 13.2.1 Access to Health Care Procedures Manual.

The PDC results were reported to defendant Shannon the next day. Once Shannon had

received approval from the Labor Relations division of the DOC’s central office,

Shannon terminated Cicchiello.

II. Jurisdiction and Standard of Review

        The District Court had subject-matter jurisdiction over Cicchiello’s constitutional

claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over her state law

claims pursuant to 28 U.S.C. § 1367(a). We have jurisdiction pursuant to 28 U.S.C. §

1291.

        We exercise plenary review over a district court’s order granting summary

judgment and apply the same standard that the district court applied. Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). Summary judgment is appropriate if

there is no genuine issue as to any material fact and the movant is entitled to judgment as

a matter of law. Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir. 2009)

(citing Fed. R. Civ. P. 56(c)). This determination is made by viewing the “facts in the

light most favorable to the nonmoving party and draw[ing] all inferences in that party’s

favor.” Farrell, 206 F.3d at 278.

                                              4
III. Discussion 2

       Defendants’ assertion of qualified immunity dictates our analysis of Cicchiello’s

First Amendment retaliation claim. We conclude that because defendants did not violate

a constitutional right, they are entitled to qualified immunity. Pearson v. Callahan, 555

U.S. 223,231-32 (2009).

       To sustain a First Amendment retaliation claim, a plaintiff must demonstrate that

the activity engaged in was constitutionally protected and that the protected activity “was

a substantial factor in the alleged retaliatory action.” Gorum v. Sessoms, 561 F.3d 179,

184 (3d Cir. 2009). If plaintiff makes these demonstrations, the defendant may defend

against such a claim by demonstrating that termination would have occurred in the

absence of the protected conduct. Id. at 188.

       The District Court correctly held that Cicchiello’s First Amendment claim fails as

a matter of law because the speech at issue is not a protected activity. In Garcetti v.

Ceballos, 547 U.S. 410 (2006), the Supreme Court held that “when public employees

make statements pursuant to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their

communications from employer discipline.” Id. at 421. Like the employee in Garcetti,

Cicchiello did not act as a citizen – but rather, as an employee – when she reported that

nurses were dispensing expired drugs, were intoxicated at work, and were repackaging

medications without physician approval. These comments were made to her employer


       2
      Cicchiello does not appeal the District Court’s dismissal of her Fourteenth
Amendment and state-law wrongful termination claims.
                                              5
about fellow employees and were not statements of public concern. She also was not

speaking as a citizen when she threatened fellow employees. Because such speech is not

the type of speech activity protected by the First Amendment, the District Court correctly

held that Cicchiello’s First Amendment retaliation claim must fail.

IV. Conclusion

      For the reasons set forth above, we will affirm the judgment of the District Court.




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