Kelly Conard v. Pennsylvania State Police

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1837
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KELLY CONARD,
Appellant
v.
PENNSYLVANIA STATE POLICE; DENNIS HILE; JOSEPH TRIPP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 04-06-cv-01450)
District Judge: Honorable Thomas I. Vanaskie
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Submitted Pursuant to Third Circuit LAR 34.1(a)
December 24, 2009
Before: McKEE, FUENTES and NYGAARD, Circuit Judges
(Opinion filed: January 11, 2010)
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OPINION
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PER CURIAM
Kelly Conard appeals from the District Court’s grant of summary judgment in
favor of Appellees in her employment discrimination lawsuit. For the following reasons,
we will affirm the District Court’s order.

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Conard worked as a Police Communications Operator (“PCO”) with the
Pennsylvania State Police (“PSP”) from 1985 until November 2002, when she voluntarily
retired to join her husband who was serving in the military in Texas. In August 2004,
Conard notified the staff of the PSP that she wanted to come back to work as a PCO. The
selection process for the PCO position consisted of an interview and a background
investigation. The PSP interviewed Conard for the PCO position but she was not selected
because the results of the background investigation were unsatisfactory. Specifically,
Appellees Hile and Tripp, as well as a former co-worker, told the trooper conducting the
background investigation that Conard abused sick leave during her previous employment
and had to be placed on leave restriction. The background investigator also found that
Conard’s credit history was troublesome because she was delinquent on several of her
accounts. Further, the investigation revealed that Conard left a former job in Texas as an
emergency dispatcher in 2003 due to stress. The PSP ultimately hired another female
applicant for the position.
In her lawsuit, Conard alleged that Hile and Tripp retaliated against her in
violation of her rights under the First Amendment and the Equal Protection Clause of the
Fourteenth Amendment by not recommending her for the PCO position. She alleged that
Hile treated her differently after she called his supervisor to request assistance for
troopers in an emergency situation. She also brought a claim of gender discrimination
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the Pennsylvania

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A plaintiff states a claim under the class-of-one theory if she can demonstrate that1
defendant intentionally treated her differently from others similarly situated and that there
was no rational basis for such treatment. Phillips v. County of Allegheny, 515 F.3d 224,
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Human Relations Act against the PSP. After the close of discovery, the Appellees moved
for summary judgment. At oral argument before the District Court, Conard withdrew all
of her claims except for the First Amendment retaliation claim and the equal protection
claims against Hile and Tripp. The District Court granted Appellees’ motion for
summary judgment and entered judgment in their favor. Conard filed a timely notice of
appeal challenging the District Court’s order.
We have jurisdiction over the final orders of district courts under 28 U.S.C.
§ 1291. We exercise plenary review over the District Court’s grant of Appellees’ motion
for summary judgment. See Monroe v. Beard, 536 F.3d 198, 206 (3d Cir. 2008). We
apply the same standard in reviewing a motion for summary judgment as the District
Court. Id. A motion for summary judgment should be granted only if there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c).
First, we agree with the District Court and Appellees that Conard’s equal
protection claim is foreclosed by the Supreme Court’s decision in Engquist v. Oregon
Department of Agriculture, 128 S. Ct. 2146 (2008). In that case, the Court determined
that the class-of-one theory, under which Conard brought her equal protection claim, is
not applicable to the public employment context. Id. at 2148-49. Therefore, the District1

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243 (3d Cir. 2008).
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Court properly granted summary judgment on this claim.
We further agree that Conard failed to raise a genuine issue of material fact with
respect to her First Amendment claim. The Supreme Court has held that when a public
employee makes a statement during the course of her official duties, the employee is not
speaking as a citizen for First Amendment purposes, and thus “the Constitution does not
insulate [her] communications from employer discipline.” Garcetti v. Ceballos, 547 U.S.
410, 421 (2006). Only if the employee speaks on a matter of public concern or the
government employer did not have an “adequate justification for treating the employee
differently from any other member of the general public,” are the employee’s statements
protected under the First Amendment. Id. at 418.
Here, Conard alleges that Hile retaliated against her because she made a phone call
to Hile’s supervisor about his failure to respond to a shooting incident. According to
Conard, she “broke the chain of command” and called Hile’s supervisor so that he would
assist two troopers who needed backup. (Appellant’s Br. at 3.) Inasmuch as Conard’s
duties included answering phone calls regarding police services and dispatching messages
to state troopers, Conard’s call to a state trooper regarding a police emergency was an act
performed during the course of her duties. Conard’s arguments that the call was outside
of her “job description” and contrary to the PSP manuals are unpersuasive. See Garcetti,
547 U.S. at 424-25 (Formal job descriptions are neither necessary nor sufficient to

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Appellant’s motion to supplement the record is denied. See Fassett v. Delta Kappa2
Epsilon (New York), 807 F.2d 1150, 1165 (3d Cir. 1986) (“The only proper function of a
court of appeals is to review the decision below on the basis of the record that was before
the district court.”)
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demonstrate that a task is within an employee’s professional duties for First Amendment
purposes.) Further, we agree with the District Court that Conard’s attire at work, Tripp’s
refusal to approve a personal day, and Tripp’s criticism of Conard’s phone manners are
not matters of public concern. Id. at 420 (“[W]hile the First Amendment invests public
employees with certain rights, it does not empower them to ‘constitutionalize the
employee grievance.’”) (citation omitted).
For the foregoing reasons, we will affirm the District Court’s order granting
Appellees’ motion for summary judgment.2

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