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VERNEY v. DODARO

January 5, 1995

JACQUELINE M. VERNEY, Plaintiff
v.
JAMES J. DODARO, HOWARD YERUSALIM, FRANK A. URSOMARSO, ROBERT A. BRADY, JAMES F. MALONE, III, JOHN L. SOKOL, JR., S. MICHAEL PALERMO, JAMES B. WILSON, JOSEPH L. DI RIENZO, SAMUEL L. CARNABUCCI, MELVIN M. SHELTON, WALTER J. LAWSON, LOUIS R. MARTIN, KEVIN F. LONGENBACH, Defendants; JACQUELINE M. VERNEY, Plaintiff vs. PENNSYLVANIA TURNPIKE COMMISSION, Defendant



The opinion of the court was delivered by: CALDWELL

 Pending in each of the above captioned cases is a motion for summary judgment filed by the Defendants. We will address the motions seriatim.

 I. Facts

 These cases arise from Plaintiff's employment with the Defendant, Pennsylvania Turnpike Commission ("Commission"). In the suit against the Commission (No. 93-1261) and various of its employees (No. 93-1229), Plaintiff alleges that she was not promoted to the position of Deputy Chief Counsel, nor apprised of the opportunity for such promotion, because of her gender. Plaintiff's claim against the Commission is made under Title VII of the Civil Rights Act of 1964 and her claims against the employees are based upon 42 U.S.C. ยง 1983 and the Fourteenth Amendment.

 At all times relevant to this action, Defendants Dodaro, Yerusalim, Ursomarso, Brady, and Malone were "commissioners", who govern all matters involving the Commission. Defendant Sokol was Executive Director of the Commission. Sokol and Defendants Palermo, Wilson, Di Rienzo, Carnabucci, Shelton, and Lawson, were members of the Commission's personnel committee. Defendant Martin is Chief Counsel of the Commission and Defendant Longenbach is Deputy Chief Counsel. *fn1" These Defendants, other than Longenbach, were involved, in some manner, in the decision not to promote the Plaintiff to Deputy Chief Counsel.

 II. Law and Discussion

 A. Standard for Summary Judgment

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In reviewing the evidence, facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd., et al v. Zenith Radio Corp., et al, 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986).

 When a moving party has carried his or her burden under Rule 56, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial'", and summary judgment must be entered in favor of the moving party. Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).

 B. Title VII Action (1:CV-93-1261)

 There are two theories for establishing employment discrimination under Title VII: disparate treatment and disparate impact. See Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1224 (3d Cir. 1994). Plaintiff argues that her complaint contains claims under both theories.

 1. Disparate Impact

 Plaintiff's assertion that there was an employment practice at the Commission that caused a disparate impact against women is rejected for three reasons. First, it is not a part of this action because she failed to plead it in her complaint. Second, if the claim was properly pled, or we allowed Plaintiff to amend her complaint, she lacks standing to challenge the employment practices of the Commission. Finally, even assuming she has standing, she has failed to demonstrate a prima facie case of disparate impact.

 In Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d. Cir, 1993), the Third Circuit upheld the district court's decision that Josey could not proceed to trial on a disparate impact claim because his complaint failed to identify the specific employment practice that allegedly caused the disparate impact. Id. at 642 (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-57, 109 S. Ct. 2115, 2124-25, 104 L. Ed. 2d 733 (1989)). The Commission contends that the decision in Josey mandates that we find that Plaintiff's complaint does not include a claim for disparate impact because it fails to identify the specific employment practice that causes the alleged disparate impact.

 Plaintiff argues that the Supreme Court's decision in Leatherman v. Tarrant County Narcotics Unit, U.S. , 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993) casts doubt upon the continued validity of the rule announced in Josey. However, the rule in Josey does not conflict with Leatherman because the Plaintiff is not being held to a heightened pleading standard; rather, she has not identified the factual elements of her cause of action, one of which is the employment policy that caused the disparate impact. This does not impose a standard greater than that provided in Fed. R. Civ. P. 8(a). *fn2"

 In the alternative, Plaintiff asserts that since discovery is ongoing, she will move to amend her complaint. Discovery ended on November 1, 1994 and permitting Plaintiff to amend her complaint at this late date would cause the Defendant severe prejudice. *fn3" Josey, 996 F.2d at 642 (plaintiff denied leave to amend his complaint because "amendment of [his] pleadings [to include a disparate impact claim] after the close of discovery would prejudice the defendant"). Plaintiff also alleges that the Commission knew that she was pursuing a disparate impact claim throughout the litigation and would not prejudiced if we permit her to amend her complaint. However, we cannot credit this surmise, and it is more likely that the Commission conducted its discovery believing that is faced only a disparate treatment claim. Plaintiff's complaint was filed well over a year ago, yet Plaintiff has made no attempt, until now, to amend it. We will not prejudice the Commission because of Plaintiff's pleading error.

 Finally, Plaintiff argues that her complaint adequately sets forth a claim of disparate impact. However, the only mention of disparate impact in the complaint is that

 
the invidious policy and practice of the Commission in not promoting qualified women to senior management and executive positions is of such a broad nature within the Commission as to amount to disparate treatment of women employees by the Commission and such as to have a disparate impact upon them.

 [Pl.'s Compl. P 31]. Although far from clear, it appears that Plaintiff is contending that the Commission's alleged policy of intentionally discriminating against women causes a disparate impact on women. That argument is nonsensical. Plaintiff has confused two distinct causes of action. A disparate impact claim arises when a facially neutral employment policy is applied in such a way as to have an adverse impact on a protected class. A disparate treatment claim occurs when there is proof, either direct or circumstantial, that a Defendant harbored a discriminatory animus against an individual Plaintiff. To present a disparate impact claim, a Plaintiff must identify the specific employment policy in his or her complaint that, as applied, results in a disparate impact to a protected class. See Josey, 996 F.2d at 642. Plaintiff has not done so, and thus has not set forth a claim for disparate impact. *fn4"


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