NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 12-3499

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DEBORAH REARICK, 

 Appellant

v.

GRAHAM SPANIER; SUSAN J. WIEDEMER; AL HORVATH;

JOSEPH DONCSECZ; JAMES MATTERN; RICHARD KILLIAN;

ROBERT MANEY; PENNSYLVANIA STATE UNIVERSITY;

JON NURNBERG; WENDEL COURTNEY

__________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 4-11-cv-00624)

District Judge: Honorable A. Richard Caputo

Submitted Under Third Circuit LAR 34.1(a)

June 11, 2013

BEFORE: McKEE, Chief Judge, AMBRO and NYGAARD, Circuit Judges

(Filed: July 1, 2013)

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OPINION OF THE COURT

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NYGAARD, Circuit Judge.
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Deborah Rearick (“Rearick”) is a public employee for Penn State University (“the 

University”). She appeals the District Court’s decision to dismiss her complaint against 

the University. We will affirm.

I.

In 2008, Rearick sued the University, alleging that her failure to receive a job 

position was in retaliation for her having made prior complaints about sexual harassment 

by a supervisor. The District Court entered summary judgment in favor of the 

University, and we affirmed. On April 4, 2011, Rearick filed the instant lawsuit. In her 

first complaint, she alleged retaliation in violation of her rights under the First 

Amendment Petition Clause, arguing that she was denied three job promotions and issued 

a non-disciplinary letter because of her prior suit against the University. Rearick filed an 

Amended Complaint and added a second count, which alleged a violation of her Second 

Amendment rights. She argued that her supervisors had questioned her about her gun 

permit, and this “intimidated” her into giving up the permit. 

In a Second Amended Complaint, Rearick added Title VII and PHRA claims, 

despite the District Court granting her leave to amend her complaint solely as to her First 

Amendment claim. The District Court dismissed her First Amendment claim because she 

failed to demonstrate that her case involved public concerns, and dismissed the Title 

VII/PHRA claims because she did not comply with federal and local rules of civil 

procedure in amending her complaint. However, she was granted leave to amend her 

Second Amendment claim only. After Rearick filed her Third Amended Complaint, the 
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District Court dismissed the entire case because Rearick failed to show any cognizable 

Second Amendment violation, retaliatory or otherwise.

II.

We exercise plenary review over a decision on a 12(b)(6) motion. Sands v. 

McCormick, 502 F.3d 263, 267 (3d Cir. 2007). “[W]e accept all factual allegations as 

true, construe the complaint in the light most favorable to the plaintiff, and determine 

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to 

relief.” Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002). A 

plaintiff’s bald assertions or legal conclusions will not suffice to survive a motion to 

dismiss. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

A public employee may bring a retaliation claim pursuant to 42 U.S.C. § 1983 if 

her public employer retaliated against her for exercising her constitutional rights. 

Borough of Duryea v. Guarnieri, 131 S.Ct. 2488, 2494 (2011). An employee bringing a 

retaliation claim is required to show that she petitioned on a matter of public concern. Id.

at 2493. Although Rearick argues that her First Amendment retaliation claim raises 

public concerns, her claims consist merely of private, ordinary employment disputes 

between her and her supervisors. Under the Guarnieri test, Rearick was not participating 

as a member of the general public in the process of democracy through speech or petition. 

Id. at 2500. Further, her attempts to bring in recent incidents at the University, including 

the Jerry Sandusky issue, do not relate to her case in any way. Because Rearick has 

failed to show that her case involves public concerns, the District Court’s decision to 

dismiss her First Amendment claims will be affirmed.
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To bring a Second Amendment claim, a plaintiff must show that her right to keep 

and bear arms was infringed in some way. Rearick argues that she was denied her 

Second Amendment rights because her supervisors intimidated her into surrendering her 

gun permit. However, Rearick has waived this issue on appeal. Rule 28(a)(5) of the 

Federal Rules of Appellate Procedure requires an appellant “to set forth the issues raised 

on appeal and to present an argument in support of those issues in [her] opening brief.” 

Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000). Although Rearick mentions her 

Second Amendment claim on appeal, she neither makes any argument in her brief to 

offer reasons why the District Court erred by dismissing this claim, nor points to any 

authority supporting her allegations. Thus, Rearick’s Second Amendment claim has been 

waived. 

Finally, Rearick argues on appeal that the District Court erred by not allowing her 

to bring her Title VII/PHRA claims. However, the District Court did not preclude 

Rearick from bringing these claims. Rather, the District Court simply required that 

Rearick follow proper local and federal rules in amending her complaint. When Rearick 

filed her original and First Amended Complaints, the E.E.O.C., and PHRC had not yet 

granted her the right to sue. It was not enough that she mentioned these claims in earlier 

complaints, in an attempt to put the University on notice of her claims. After being 

granted the right to sue, she was required by local and federal rules to obtain the District 

Court’s approval to amend her complaint. While the federal rules require that leave be 

freely given to amend a complaint, this should not be construed as a way to evade proper 

rules of civil procedure.
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III.

We agree with the District Court that Rearick failed to establish a claim under the 

First Amendment, and failed to follow local and federal rules of civil procedure in 

amending her complaint to add her Title VII/PHRA claims. Further, her Second 

Amendment claim has been waived on appeal. For these reasons, the District Court’s 

decision to dismiss Rearick’s complaint will be affirmed.