Rita J. Cindrich v. Michael Fisher

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2615
RITA J. CINDRICH,
Appellant
v.
MICHAEL FISHER; THOMAS L. PALMER;
MARK A. PACELLA; ALEXIS BARBIERI;
DONALD P. MINAHAN
On Appeal from the U.S. District Court
for Middle District of Pennsylvania
(D.C. No. 03-cv-02282)
District Judge: Honorable Christopher C. Conner
No. 07-2969
RITA J. CINDRICH,
Appellant
v.
MICHAEL FISHER, in his former capacity as Attorney General
and individually; GERALD J. PAPPERT, Acting Attorney General,
individually and in his offical capacity; THOMAS W. CORBETT,
JR., Attorney General, Individually and in his official capacity;
DONALD P. MINAHAN, Former Executive Deputy
Attorney General individually and in his official capacity;

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Honorable James B. Loken, Chief Judge, Honorable Roger L. Wollman, and*
Honorable Diana E. Murphy, United States Circuit Judges for the Eighth Circuit, sitting
by designation.
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THOMAS L. PALMER, Former Attorney General In Charge
individually and in his official capacity; MARK A. PACELLA,
Chief Deputy Attorney General individually and in his
official capacity; ALEXIS L. BARBIERI, Executive Deputy
Attorney General individually and in her official capacity.;
BRUCE R. SARTESCHI, Director of Human Resources, individually
and in his official capacity
On Appeal from the U.S. District Court
for Western District of Pennsylvania
(D.C. No. 05-cv-01348)
District Judge: Honorable Donetta W. Ambrose
Submitted Under Third Circuit LAR 34.1(a)
October 21, 2008
Before: LOKEN, Chief Judge, WOLLMAN, and MURPHY, Circuit Judges*
(Filed: July 8, 2009)
Patrick Sorek, Esq.
Leech, Tishman, Fuscaldo & Lampl
525 William Penn Place
30 Floor Citizens Bank Buildingth
Pittsburgh, PA
Counsel for Appellant

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The Honorable Christopher C. Conner, United States District Judge for the Middle1
District of Pennsylvania, adopting the Report and Recommendation of the Honorable J.
Andrew Smyser, United States Magistrate Judge for the Middle District of Pennsylvania.
The Honorable Donetta W. Ambrose, Chief Judge, United States District Court for2
the Western District of Pennsylvania.
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J. Bart DeLone, Esq.
Office of the Attorney General
of Pennsylvania
15 Floor Strawberry Squareth
Harrisburg, PA
Counsel for Appellees
LOKEN, Chief Judge.
Rita Cindrich, an attorney in Pennsylvania’s Office of Attorney General,
commenced two actions in different district courts, asserting First Amendment retaliation
claims and pendent state law claims. In the first action, she sued five supervisory
officials, including the former Pennsylvania Attorney General who is now a member of
this court. In the second action, she added three additional officials, including the
Attorney General who terminated her in April 2005. In the first action, the district court1
granted defendants summary judgment, dismissing the federal claims on the merits and
the pendent state law claims without prejudice. In the second action, the district court2
granted defendants summary judgment, dismissing the federal claims and some pendent
claims on the merits and the remaining state law claims without prejudice. Cindrich v.
Fisher, 512 F. Supp. 2d 396 (W.D. Pa. 2007). Cindrich appeals both final judgments. As
the two appeals have many common facts and legal issues, we resolve both in a single
opinion. We review each grant of summary judgment de novo, affirming only if there are
no genuine issues of material fact. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d
Cir.), cert. denied, 129 S. Ct. 763 (2008). For the following reasons, we affirm the
judgments of both district courts.
I. Background

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Cindrich worked as an attorney in the Charitable Trusts and Organizations Section
of the Public Protection Division (“the Section”) from July 1993 until her forced
resignation in 2005. The Section monitors the administration of trusts and estates when
property has been committed to one or more charities. Its attorneys appear in probate
proceedings, representing the Attorney General in his capacity as parens patriae to ensure
that assets bequeathed to charities are properly administered. This lengthy dispute began
some months after Cindrich’s immediate superior, defendant Mark Pacella, was promoted
to head of the Section and was replaced as attorney-in-charge of the Pittsburgh office by
defendant Lawrence Palmer. In June 2000, Cindrich and Palmer disagreed over what
position to take regarding a particular estate. Palmer ordered Cindrich to remove a
section of analysis from an internal memorandum to Pacella. Cindrich disobeyed the
directive and sent Pacella a draft containing her analysis.
Over the next two years, Cindrich sent numerous memos and e-mails to Palmer,
Pacella, and defendant Alexis Barbieri objecting to her case assignments, accusing
Palmer of retaliating because she disobeyed his June 2000 order, questioning Palmer’s
integrity and intelligence, and accusing private attorneys appearing in contested cases of
unethical or conspiratorial conduct. Cindrich met in person with Attorney General
Michael Fisher, also a defendant, and complained about her superiors’ handling of cases.
On June 17, 2003, Cindrich sent Barbieri an e-mail accusing Palmer and Pacella of
conspiring “to defeat the public interest” in a court proceeding administering the Laubach
estate. Shortly thereafter, unable to persuade her superiors that anything was amiss in that
case, Cindrich took six weeks’ leave at Barbieri’s insistence. Upon returning, she
withdrew her appearance in the Laubach case and later disobeyed Pacella’s order by
sending a letter to the presiding judge offering to “make [herself] available to the Court to
support her prior position.”
Following this insubordination, Barbieri in an October 2003 letter directed
Cindrich to obtain a psychological evaluation by the State Employee Assistance Program.
Cindrich responded that she had just seen a psychologist and was certified to return to
work. After reviewing the psychologist's certification, Barbieri told Cindrich it did not

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comply with the prior directive and directed Cindrich to obtain another evaluation.
Cindrich filed the first action two months later, alleging that defendants violated her First
Amendment rights by taking actions intended to “drive [her] out of her position and cause
her to suffer excruciating pain[] and mental anguish” after she pointed out irregularities in
the Laubach case.
Cindrich continued to work as a Section attorney after filing the first lawsuit. She
was assigned to represent the Section in the guardianship proceedings of Evon Nossen.
In March 2004, Cindrich sent numerous e-mails to Palmer, Pacella, and Barbieri alleging
that a private attorney representing a fiduciary in the Nossen case “mis[s]tated the law”
and “held relevant information.” She analogized the situation to the Laubach case and
recommended filing a petition “in the nature of a contempt proceeding.” Cindrich’s e-
mails implied that other Section attorneys had assisted the private attorney’s alleged
misconduct, but she never explained or substantiated that accusation. Pacella rejected her
recommendation of a contempt petition, “reiterat[ing] that we can not be making
allegations we have no material evidence to support.” Cindrich agreed the file should be
reassigned to Palmer but then sent a long e-mail to Pacella accusing the private attorney
of “wearing several hats that may give rise to excessive fees,” accusing the fiduciary of
“complicity” in the attorney’s “misrepresentations,” and recommending “that you do not
attempt to place the blame on me.” Pacella in reply pointed out why Cindrich’s
suspicions of fiduciary misfeasance and attorney misconduct were unfounded and
reminded her, “you are no longer assigned to this case.”
Following a leave of absence during the summer and fall of 2004, Cindrich was
assigned to proceedings regarding the estate of Ethel Boring. In February 2005, Cindrich
sent Pacella a memorandum requesting “an internal review of the assignment of this case
[by Palmer], an inquiry into the underlying errors, omissions, and inconsistent documents
provided by Counsel during the course of this review, and authority to file Supplemental
Objections to bring these matters to the Court’s attention.” Over the next month,
Cindrich complained to Pacella about the assignment of the Boring case and what she
perceived to be “overbearing, unjustified and unreasonable interference” by her superiors.

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On March 8, she disobeyed Pacella’s direct order not to file supplemental objections.
Pacella removed her from the case. Cindrich sent e-mails suggesting he reconsider,
discussing similarities between the Boring case and others on which she had worked, and
threatening to seek disciplinary action and whistleblower protection. Several weeks later,
she sent a memo to two superiors accusing Palmer and Pacella of gender harassment and
retaliation because she had pointed out “wrongdoing” in cases to which she had been
assigned. The memo complained of psychological abuse and requested protection under
Pennsylvania’s whistleblower statute and an internal investigation of her allegations. On
April 1, 2005, less than one week later, Barbieri and Pacella notified Cindrich that she
was terminated effective April 29, 2005. She resigned April 26 and filed the second
action in September.
The First Action. Defendants moved for summary judgment at the close of
discovery in the first action. The magistrate judge recommended dismissing the First
Amendment retaliation claims. Applying the balancing test of Pickering v. Board of
Education, 391 U.S. 563, 568 (1968), to determine when a public employee’s interest in
speaking out on a matter of public concern outweighs the State’s countervailing interest
as employer, the magistrate judge concluded that Cindrich’s speech was unprotected: (1)
her interest in exposing corruption was weak because she never provided “concrete
understandable statements of what the defendants had done that was improper or
unethical,” and (2) her speech caused significant disruption within the Section and
“seriously undermined, if not completely destroyed, the employment relationship between
[Cindrich] and defendant Palmer.”
The district court adopted the report and recommendations, granted defendants
summary judgment dismissing Cindrich’s First Amendment claims, and subsequently
dismissed the pendent state law claims without prejudice. Cindrich v. Fisher, 2006 WL
898176 (M.D. Pa. Apr. 6, 2006). Cindrich appealed. With the appeal pending, the
Supreme Court decided Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), which
significantly modified governing law by holding that, “when public employees make
statements pursuant to their official duties, the employees are not speaking as citizens for

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First Amendment purposes, and the Constitution does not insulate their communications
from employer discipline.”
The Second Action. Following entry of the final order in the first action, the
district court in the second action granted defendants summary judgment on all First
Amendment retaliation claims, concluding that claims arising prior to September 28,
2003, were time-barred, collateral estoppel barred issues litigated in the first action, and
Cindrich’s subsequent speech was not protected by the First Amendment as construed in
Garcetti. Regarding the state law claims, the court granted Cindrich leave to amend her
complaint to add tort claims dismissed without prejudice in the first action. Applying
Pennsylvania immunity law, the court granted summary judgment on tort claims for
defamation, civil conspiracy, and intentional infliction of emotional distress. The court
dismissed whistleblower claims arising prior to April 1, 2005, as time-barred. It
concluded that Cindrich’s unauthorized filing of objections in the Boring case was not a
report of “wrongdoing or waste” within the meaning of the statute and granted summary
judgment on this whistleblower claim. See 43 Pa. Stat. Ann. § 1423(a). However, the
court declined to exercise supplemental jurisdiction over whistleblower claims based on
other alleged reports of wrongdoing and waste and dismissed those claims without
prejudice.
II. First Amendment Issues
“A public employee has a constitutional right to speak on matters of public
concern without fear of retaliation.” Baldassare v. New Jersey, 250 F.3d 188, 194 (3d
Cir. 2001). To prevail on a First Amendment retaliation claim, a public employee must
first show that her activity was protected by the First Amendment. This is an issue of
law. To warrant First Amendment protection, an employee must speak “as a citizen upon
matters of public concern,” not “as an employee upon matters only of personal interest.”
Connick v. Myers, 461 U.S. 138, 147 (1983); see Sanguigni v. Pittsburgh Bd. of Pub.
Educ., 968 F.2d 393, 399-400 (3d Cir. 1992). In Garcetti, the Court clarified that, even if

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an employee’s speech touches on a matter of public concern, it is not protected speech “as
a citizen” if it was made pursuant to the employee’s official duties. 547 U.S. at 421; see
Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009); Foraker v. Chaffinch, 501 F.3d
231, 239 (3d Cir. 2007); Hill v. Borough of Kutztown, 455 F.3d 225, 242 (3d Cir. 2006).
It may, of course, be protected by whistleblower or employment discrimination statutes.
A. The First Action. The district court granted summary judgment prior to the
Supreme Court’s decision in Garcetti. Based on defendants’ concession that some of
Cindrich’s speech touched on matters of public concern, the court applied the Pickering
balancing analysis and concluded that all of Cindrich’s speech was unprotected because,
in toto, its disruptiveness outweighed her interest in speaking out on matters of public
concern.
On appeal, Cindrich makes no effort to identify specific matters of public concern
addressed by specific speech. In her view, since the Section serves the public interest in
protecting charitable bequests, all criticism of the way in which her superiors carried out
these responsibilities was speech addressing a matter of public concern. But the Supreme
Court in Connick applied a more discriminating approach, separating speech on matters
of public concern from speech relating to the employee’s private interests and applying
Pickering balancing only to the former:
[W]ith but one exception, the questions posed by Myers to her co-workers
do not fall under the rubric of matters of “public concern.” We view the
questions pertaining to the confidence and trust that Myers’ co-workers
possess in various supervisors, the level of office morale, and the need for a
grievance committee as mere extensions of Myers’ dispute over her transfer
to another section of the criminal court. . . . [W]e do not believe these
questions are of public import in evaluating the performance of the District
Attorney as an elected official.
461 U.S. at 148. Under Connick, Cindrich’s complaints about case assignments, about

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Cindrich also alleged that, in March 2003, she told a judge of the Allegheny County3
Orphans’ Court that Palmer was improperly handling cases. This allegation was not timely
raised in the district court nor properly raised as an issue on appeal.
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who would be blamed for particular actions, and about whether her unduly harsh and at
times bizarre accusations warranted a psychological evaluation concerned Cindrich’s
personal interest as an employee. They were not matters of public concern. “[T]he First
Amendment does not require a public office to be run as a roundtable for employee
complaints over internal office affairs.” Id. at 149.
Cindrich alleges that her superiors retaliated against her for identifying ethical and
legal issues in the handling of cases to which she was assigned. These allegations require
Pickering balancing. Though the question is not free from doubt, we assume that speech
accusing private parties of misconduct in proceedings in which the Section appeared to
protect the public interest touched on a matter of public concern. And certainly speech
accusing Section attorneys of complicity in such misconduct did. But after careful review
of the summary judgment record in the first action, we agree with the district court that
this speech was unprotected for the reasons stated in the magistrate judge’s thorough
opinion. See Miller v. Clinton County, 544 F.3d 542, 550-51 (3d Cir. 2008).
Moreover, even if Cindrich’s speech that touched on matters of public concern
could survive summary judgment under Pickering, this speech was unprotected as a
matter of law under Garcetti. In her “chain of command” memos and e-mails, Cindrich
“spoke in her capacity as a public employee contributing to the formation and execution
of official policy.” Mills v. City of Evansville, 452 F.3d 646, 648 (7th Cir. 2006). These
communications “reflect[ed] nothing more than the quintessential employee beef:
management has acted incompetently.” Haynes v. City of Circleville, 474 F.3d 357, 365
(6th Cir. 2007) (quotation omitted).
Cindrich argues that the letter she sent to the judge presiding over the Laubach
proceedings was not pursuant to her official duties because it was unauthorized. We3

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disagree. The letter pertained to a case in which Cindrich had previously appeared on
behalf of the Section; it offered to provide support for her “prior position.” Advocating a
position in a judicial proceeding that could affect a charitable interest was at the core of
Cindrich’s professional responsibilities. Preventing a line attorney removed from a case
from advocating a position contrary to the Section’s official position was at the core of
the Office of Attorney General’s interest as her employer. As the Court explained in
Garcetti, 547 U.S. at 422-23:
Employers have heightened interests in controlling speech made by an
employee in his or her professional capacity. Official communications have
official consequences, creating a need for substantive consistency and
clarity. Supervisors must ensure that their employees’ official
communications are accurate, demonstrate sound judgment, and promote
the employer’s mission.
Like her complaints up the chain of command, this letter pertained to Cindrich’s
performance of her official duties in representing the Section in judicial proceedings.
Thus, the summary judgment record conclusively establishes that Cindrich did not send
this letter “as a citizen.”
Cindrich further argues that the district court erred by ignoring her claims that
defendants violated two non-speech First Amendment rights, freedom of association and
the right to petition the government for redress. Cindrich did not raise this issue in her
brief opposing defendants’ motion for summary judgment or in her objections to the
magistrate’s report and recommendations. She did not identify genuine issues of material
fact with respect to these non-speech claims. As we have repeatedly held, “issues not
raised before the district court are waived on appeal.” Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir. 2007). In addition, the contention
is without merit. See Foraker, 501 F.3d at 234-38.
B. The Second Action. The additional speech at issue in the second action

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Cindrich also asserts that defendants violated the First Amendment by prohibiting her4
from reporting problems she encountered in the handling of cases. But Cindrich did not
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included Cindrich’s complaints to her superiors about the Nossen and Boring cases and
her unauthorized March 2005 court filing in the Boring case. Applying Garcetti as well
as Pickering, the district court concluded that none of this speech was protected by the
First Amendment. We agree.
The e-mails from Cindrich to her superiors complaining about wrongdoing in the
Nossen and Boring cases were made in the performance of her case assignments,
involved issues pertaining to those cases, and were based on special knowledge and
experience Cindrich acquired through her job. Thus, this was speech made pursuant to
Cindrich’s official duties. See Gorum, 561 F.3d at 186. As for the unauthorized filing,
the district court concluded that Cindrich acted pursuant to her official duties when she
filed supplemental objections in the Boring case as “Counsel of Record” for the
Commonwealth to bring “[o]missions, errors and inaccuracies” by private counsel to the
court’s attention, even though her action was unauthorized. 512 F. Supp. 2d at 403. We
agree.
Cindrich primarily argues on appeal that the district court erred by ignoring
protected speech activities prior to December 2003. This mischaracterizes the district
court’s analysis. The court declined to consider First Amendment claims based on
conduct prior to December 2003 because those claims had been litigated to final
judgment (and now affirmed on appeal) in the first action. 512 F. Supp. 2d at 402. The
court concluded that First Amendment claims based on conduct after December 2003
failed because the speech in question was not protected under Garcetti. The issue on
appeal is not whether the district court considered all relevant evidence, but whether the
court correctly determined that there are no genuine issues of material fact precluding
summary judgment on these claims. See Fed. R. Civ. P. 56(c). As we have explained,
Cindrich fails to identify a genuine issue of material fact as to whether the statements in
question were made pursuant to her official duties.4

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argue this First Amendment theory to the district court. She may not raise it for the first time
on appeal. See Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir.
1976).
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III. State Law Issues
Cindrich’s final argument in the second action is that the district court erred by
exercising supplemental jurisdiction over certain state law claims despite granting
summary judgment dismissing her federal claims. When a district court has supplemental
jurisdiction over state law claims under 28 U.S.C. § 1367(a), as in this case, it has
discretion to exercise or decline to exercise this jurisdiction. De Asencio v. Tyson Foods,
Inc., 342 F.3d 301, 311 (3d Cir. 2003). That decision “should be based on considerations
of ‘judicial economy, convenience and fairness to the litigants.’” New Rock Asset
Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1505 (3d Cir.
1996), quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966).
The statute provides that a district court “may decline to exercise supplemental
jurisdiction” if the court “has dismissed all claims over which it has original jurisdiction.”
§ 1367(c)(3). We have observed that, in most cases, pendent state law claims should be
dismissed without prejudice “where the claim over which the district court has original
jurisdiction is dismissed before trial.” Borough of W. Mifflin v. Lancaster, 45 F.3d 780,
788 (3d Cir. 1995). On the other hand, “[w]here the original federal jurisdiction claim is
proceeding to trial . . . considerations [of judicial economy, convenience, and fairness to
the parties] will normally counsel an exercise of district court jurisdiction over state
claims based on the same nucleus of operative facts.” Id.
In this case, the district court allowed Cindrich to amend her complaint to add state
law claims dismissed without prejudice in the first action. The parties then conducted
extensive discovery, argued similar immunity issues under state and federal law, and fully
argued defendants’ motion for summary judgment on all claims. The district court
resolved state law claims that were fully litigated, but not others. The situation is much

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like that in Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir. 1999), where the
parties extensively litigated one pendent claim before the district court dismissed all
federal claims on the merits and other pendent claims without prejudice. We reversed the
dismissal of the litigated pendent claim and remanded that claim for further proceedings,
noting that “dismissal of a federal claim does not deprive a court of the constitutional
power to hear pendent claims.” Id. at n.9. At the same time, we affirmed the district
court’s decision not to exercise supplemental jurisdiction over the other pendent claims,
explaining: “although exercising supplemental jurisdiction over one claim and declining
to exercise jurisdiction over other claims is unusual, it is not an abuse of discretion.” Id.
at n.10, citing Southerland v. Hardaway Mgmt. Co., 41 F.3d 250, 256-57 (6th Cir. 1994).
Likewise, in this case, interests of judicial economy, convenience, and fairness to the
parties were served by the district court exercising substantial, but not total, supplemental
jurisdiction to resolve claims that Cindrich had voluntarily brought in federal court and
were fully litigated. There was no abuse of discretion.
The judgments of the district courts are affirmed.

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