1 In considering a motion for summary judgment, the court must

determine whether “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is

no genuine issue of material fact and that the moving party is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also, Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-2510, 

91 L.Ed.2d 202, 211 (1986); Federal Home Loan Mortgage Corporation v.

Scottsdale Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003). Only facts

that may affect the outcome of a case are “material”. Moreover, all

reasonable inferences from the record are drawn in favor of the non-movant. 

Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

(Footnote 1 continued):

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TAMMY N. BRUDNAK, )

 ) Civil Action

Plaintiff ) No. 05-CV-02159

 )

vs. )

 )

ALLENTOWN SCHOOL DISTRICT and )

MARIO TRACA, )

 )

Defendants )

O R D E R

NOW, this 24th day of August, 2006, upon consideration

of the Motion for Enlargement of Time to Extend Dispositive

Motion Deadlines by Defendant, Mario Traca, which motion was

filed on April 17, 2006 and is unopposed; upon consideration of

the Motion for Enlargement of Time to Respond to Defendants’

Motions for Summary Judgment, which motion was filed on April 19,

2006; it appearing that neither defendant responded to

plaintiff’s motion for an enlargement of time to respond to

defendants’ motions for summary judgment; upon consideration of

Defendant, Mario Traca’s, Motion for Summary Judgment, which

motion was filed on April 24, 2006 ; upon consideration of 1

Case 2:05-cv-02159-JKG Document 38 Filed 08/25/06 Page 1 of 5
(Continuation of footnote 1):

Although the movant has the initial burden of demonstrating the

absence of genuine issues of material fact, the non-movant must then establish

the existence of each element on which it bears the burden of proof. 

See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000). A

plaintiff cannot avert summary judgment with speculation or by resting on the

allegations in her pleadings, but rather must present competent evidence 

from which a jury could reasonably find in her favor. Ridgewood Board of

Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); 

Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995). Lastly, we note that,

when the outcome of a case will depend upon credibility determinations,

summary judgment is inappropriate. Coolspring Stone Supply, Inc. v. American

States Life Insurance Company, 10 F.3d 144, 148 (3d Cir. 1993).

2 On May 5, 2005, plaintiff Tammy N. Brudnak commenced this

action by filing her four-count Complaint. Counts One and Two allege

violations of rights secured by the United States Constitution and enforceable

through 42 U.S.C. § 1983. Count One is a claim by Miss Brudnak against

defendant Mario Traca. Count Two is a claim by Miss Brudnak against defendant

Allentown School District. Count Three is a claim by Miss Brudnak against

Allentown School District for violations of 20 U.S.C. § 1681. Finally, Count

Four is a claim against Mario Traca for willful misconduct. It is not

entirely clear what Count Four is alleging. It contains elements of a pendent

state claim for the tort of battery under Pennsylvania law (paragraph 54). It

contains a claim for punitive damages (paragraph 60). And it raises the

statutory exception (42 Pa.C.S.A. § 8550) to the defense of governmental

immunity under Pennsylvania law (paragraph 52). (Pennsylvania’ Political

Subdivision Tort Claim Act withdraws the immunity afforded to a governmental

employee if the actions alleged were performed willfully. Irvin v. Borough of

Darby, 937 F.Supp. 446 (E.D.Pa. 1996)).

A brief summary of the allegations in Miss Brudnak’s Complaint is

as follows. Miss Brudnak attended Dieruff High School where Mr. Traca was a

teacher. During Miss Brudnak’s junior and senior years, Mr. Traca sexually

harassed her. The administration of Dieruff High School was aware of 

Mr. Traca’s behavior, but was indifferent.

-2-

Plaintiff Tammy Brudnak’s Brief in Opposition to Defendant Mario

Traca’s Motion for Summary Judgment, which brief was filed on 

May 22, 2006, and upon consideration of the briefs of the

parties,2

IT IS ORDERED that the Motion for Enlargement of Time

to Extend Dispositive Motion Deadlines by Defendant, Mario Traca,

is granted as unopposed.

Case 2:05-cv-02159-JKG Document 38 Filed 08/25/06 Page 2 of 5
-3-

IT IS ORDERED that Defendant, Mario Traca’s, Motion for

Summary Judgment is deemed timely filed.

IT IS FURTHER ORDERED that the Motion for Enlargement

of Time to Respond to Defendants’ Motions for Summary Judgment is

granted as unopposed.3

IT IS FURTHER ORDERED that plaintiff’s response to

defendant Traca’s motion for summary judgment, which response was

filed May 22, 2006, shall be deemed to have been timely filed.

IT IS FURTHER ORDERED that Defendant, Mario Traca’s,

Motion for Summary Judgment is denied.4

BY THE COURT:

/s/ James Knoll Gardner 

James Knoll Gardner

United States District Judge

 

3 Rule 7.1(c) of the Rules of Civil Procedure for the United States

District Court for the Eastern District of Pennsylvania provides in pertinent

part that “any party opposing [a] motion shall serve a brief in opposition,

together with such answer or other response which may be appropriate, within

fourteen (14) days after service of the motion and supporting brief. In the

absence of timely response, the motion may be granted as uncontested....” If

a motion is served by mail, respondent is entitled to three additional days to

serve his or her answer. See Fed.R.Civ.P. 6(e). 

Plaintiff filed her motion for an enlargement of time on April 19,

2006. The Certificate of Service attached to the motion indicates that on

April 19, 2006 defendant Traca was served, through his attorney, Robin Snyder, 

Esquire, with the motion to dismiss by first-class mail. Thus, defendant’s

response was required to be filed by May 8, 2006, which is the first business

day after fourteen days pursuant to Local Rule 7.1(c) plus three additional

days pursuant to Federal Rule of Civil Procedure 6(e). As of the date of the

within Order, defendant Traca has not responded to the motion. Therefore, we

grant the motion as unopposed.

4 Defendant Traca in his motion for summary judgment seeks to

dismiss Count One only of plaintiff’s Complaint and seeks to preclude punitive 

(Footnote 4 continued):

Case 2:05-cv-02159-JKG Document 38 Filed 08/25/06 Page 3 of 5
-4-

 

(Continuation of footnote 4):

damages under § 1983. In seeking to dismiss Count One only, defendant Traca

does not address any issues of state law.

Defendant Traca makes three arguments for summary judgment on 

Count One. Those arguments are as follows. Defendant Traca’s first argument

is that plaintiff has not stated a violation of the Equal Protection Clause of

the Constitution of the United States because plaintiff has not alleged that

she was treated differently from similarly situated individuals because of her

gender. Defendant Traca further argues that although plaintiff may have been

harassed, harassment of individual is not treatment directed towards a

protected class.

Defendant Traca’s second argument is that plaintiff has not

alleged a constitutional violation because she has not alleged facts

sufficient to demonstrate a violation of her constitutional rights of liberty

and bodily integrity. Specifically, defendant Traca alleges that plaintiff

must allege conduct on the part of the defendant that “shocks the conscience”. 

Defendant Traca contents that although the inquiry as to whether conduct

shocks the conscience is a “fact sensitive inquiry”, the facts alleged by

plaintiff do not rise to that level. In particular, defendant Traca asserts

that plaintiff has alleged only that he “touched her leg on one occasion,

leaned over her shoulders in a computer resource room and stated ‘I could do

anything to you and no one would know’”, and that this alleged conduct does

not shock the conscience.

Defendant Traca’s third argument is that even if his conduct as

alleged by plaintiff shocks the conscience, defendant is entitled to qualified

immunity because the conduct does not “rise to the level of a constitutional

violation.”

Regarding defendant’s assertion that plaintiff is not entitled to

punitive damages, defendant has not cited any legal authority. We therefore

deny the request for failure to brief the issue. Rule 7.1(c) of the Rules of

Civil Procedure for the United States District Court for the Eastern District

of Pennsylvania (“Local Rules”) provides in pertinent part: “Every motion not

certified as uncontested, or not governed by Local Rule 26.1(g), shall be

accompanied by a brief containing a concise statement of the legal contentions

and authorities relied upon in support of the motion.” A party is required to

cite legal authority to support the contentions raised in his motion. See

Copenhaver v. Borough of Bernville, No. Civ.A. 02-8398, 2003 U.S. Dist. LEXIS

1315 (E.D.Pa. Jan. 9, 2003)(Rufe, J.)

Plaintiff responds to defendant Traca’s arguments to dismiss Count

One by first asserting that an individual has the right to be free from

purposeful sex discrimination by state actors and that an official’s abuse of

authority for purposes of his own sexual gratification violates the Equal

Protection Clause.

Plaintiff further argues that defendant’s second argument fails

because defendant’s conduct does shock the conscience. In addition, plaintiff

argues that the record reflects that defendant Traca’s conduct included the

(Footnote 4 continued):

Case 2:05-cv-02159-JKG Document 38 Filed 08/25/06 Page 4 of 5
-5-

 

(Continuation of footnote 4):

following: defendant continually “hounded” plaintiff to join his track team;

he asked her personal questions about her life and whether she had a

boyfriend; defendant placed his hand on her bare thigh; defendant told her

that “I can imagine what your mother looks like if you look that good”;

defendant told plaintiff that he could teach her CPR at his house; defendant

whispered in plaintiff’s ear that she would look better with less clothes on;

defendant forced plaintiff to have him as her teacher mentor although

plaintiff should have been able to choose her teacher mentor; and defendant

sat on plaintiff’s lap and said she could pass defendant’s class for a little

“something-something”, which implied sexual favors.

Regarding defendant’s third argument for qualified immunity,

plaintiff argues her right to be free from an invasion of personal security is

clearly established.

A review of the record in this matter, in the light most favorable

to plaintiff as the non-moving party, as required by Rule 56 of the Federal

Rules of Civil Procedure, reveals that there are disputes concerning material 

issues of fact which preclude entry of summary judgment on behalf of defendant

Traca. These disputes include, but are not limited to: (1) whether defendant

Traca treated plaintiff Brudnak different than similarly situated individuals

on account of her gender; (2) whether defendant Traca offered to give

plaintiff Brudnak’s a passing grade in exchange for sexual favors; and (3)

whether defendant Traca precluded plaintiff from choosing her own mentor and

whether any such preclusion amounted to an invasion of plaintiff’s personal

liberty interests. There are competing explanations of the events surrounding

the foregoing issues which require credibility determinations by a jury. All

of these issues are material disputes concerning plaintiffs’ claims, which

preclude the grant of summary judgment.

Case 2:05-cv-02159-JKG Document 38 Filed 08/25/06 Page 5 of 5