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CLARK v. PENNSYLVANIA

May 4, 1995

VELMA CLARK
v.
COMMONWEALTH OF PENNSYLVANIA, ET AL.



The opinion of the court was delivered by: ANITA B. BRODY

 Plaintiff Velma Clark ("Clark"), a black woman, brings this action under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 1983, and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. § 951, et seq. ("PHRA") against defendants Commonwealth of Pennsylvania Department of Welfare ("DPW"), Delaware County Board of Assistance ("DCBA"), and defendants Harold Sherman, Patricia Jacobs, Patricia Graves and Judith Montgomery in their official and individual capacities. Defendants have filed a motion for summary judgment, and plaintiff has filed motions for partial summary judgment and for leave to amend the complaint.

 Although a number of legal issues are raised the following are the most significant: 1) whether the use of a civil service exam to determine promotions on two separate occasions within two years constitutes a continuing violation under Title VII of the Civil Rights Act of 1964; I find that it does not; 2) whether individual defendants may be liable in their individual capacity under Title VII and the PHRA; I find that they may not; 3) whether a state agency charged with ensuring that promotions within its county are lawful, but which allegedly was not involved in the promotions at hand, is a proper defendant in an employment discrimination case; I find that it is; and 4) whether a plaintiff can file claims in federal court based on EEOC complaints for which she had received right to sue letters more than ninety days prior, but which were reasonably related to the original EEOC complaint which was timely filed in federal court; I find that she can.

 Before me now are 1) motion of plaintiff to amend her complaint; I will deny this motion; 2) motion of plaintiff for partial summary judgment; I will deny this motion; 3) motion of defendants for summary judgment on plaintiff's Title VII claims; I will deny motion of defendants for summary judgment on plaintiff's disparate impact, disparate treatment, hostile environment, and retaliation claims, except I will grant motion of defendants for summary judgment on plaintiff's disparate treatment claim based on the failure to promote in the autumn of 1987; 4) motion of individual defendants for summary judgment on individual liability under Title VII; I will grant this motion; 5) motion of defendants for summary judgment on plaintiff's PHRA claims; I will grant this motion; 6) motion of defendants for summary judgment on plaintiff's 42 U.S.C. § 1983 claim; I will defer ruling on this motion; and 7) motion of defendants for summary judgment as to plaintiff's request for compensatory and punitive damages under Title VII; I will limit plaintiff to compensatory and punitive damages for post November 21, 1991 acts of intentional discrimination.

 I. Factual Background

 The material facts relevant to the motion for leave to amend the complaint and to the motions for summary judgment are either undisputed or stated in a light most favorable to the non moving party *fn1"

 In November of 1985 defendant Sherman authorized the posting of three vacancies for Income Maintenance Supervisor ("Supervisor") positions within the DCAO. The DPW authorized specific methods that were permissible for directors to use in filling these positions. Included among these were those designated "promotion without exam method" and a civil service exam method used in conjunction with the rule of three ("civil service exam method").

 Under the civil service exam method to be eligible for promotion an applicant must take, and pass, the civil service exam for the position. Possible passing exam scores include 108, 96, 84, 72, and 60; below this is failure. If an applicant passes the exam he or she is placed on the list of eligibles. Under the rule of three, which is a mandatory component of the civil service exam method (Def.'s answer to Pl.'s first set of interrogatories P 6; Civil Service Commission Management Directive M580.1, Part A), the people with the top three scores on the list of eligibles, and anyone who ties them, is interviewed for the promotions. Once the list of interviewees is determined the decision of whom to promote is based solely on the interview, and the exam scores are no longer relevant.

 Under the promotion without exam method a vacancy is announced and a deadline is set for applications. After the deadline has passed the candidates meeting minimum criteria are scored according to meritorious service and seniority. The meritorious service score is determined by assigning a point total for the candidate's rating on his or her last annual performance evaluation. The seniority score is determined by dividing the number of months that the candidate worked in the next lower classification by six. These two scores are then added together to attain the final promotional point total. All candidates who score within fifteen points of the highest scoring candidates are considered "relatively equal" and can be interviewed for the promotion. Again, once the list of interviewees is determined the scores are no longer relevant. (Marmelo letter to Ms. Martinez, Human Relations Representative dated 2-22-88).

 In the fall of 1985 defendant Sherman chose to use the civil service exam method to fill the vacant supervisor positions despite the Personnel/affirmative action officer Frank Marmelo's ("Marmelo") suggestion that he open up the process by using the promotion without exam method. (Marmelo depo. pp. 72-74, 85-87). During this time the DCAO had in place an affirmative action/equal employment policy.

 In November of 1985 the civil service exam was administered for the position of supervisor; the top three scores were all 108s. Under the rule of three anyone who scored below 108 was ineligible for an interview. Although black employees applied for the Supervisor positions, including Clark, none were interviewed, all having scored below 108 on the exam. (Civil Service Commission Certification of Eligibles dated 11-15-85). Clark had scored an 84. All three positions were filled by white candidates who scored 108. Clark's evidence that personnel officer Marmelo gave the civil service list of eligibles to Sherman, and that Sherman was aware of the race of the people within his office supports the position that Sherman was aware that no black applicant had scored a 108 on the civil service exam. (Sherman depo. p. 96; Marmelo depo. pp. 93-94).

 In January of 1987 there were three more vacancies for Supervisor positions and again Sherman elected to use the civil service exam method. Once more the top three scores were 108 and under the rule of three anyone who scored below 108 was ineligible for an interview. Again no black applicant, including Clark *fn2" , had scored 108, and none were interviewed for the positions. (Civil Service Certification of Eligibles dated 2-2-87 ). All three positions were again filled by white candidates who had scored 108 on the civil service exam. Clark's evidence again supports the position that Sherman was aware that no blacks had scored 108. (Sherman depo. p. 96; Marmelo depo. pp. 93-94).

 On February 24, 1987, Clark filed her first claim of racial discrimination with the Pennsylvania Human Relations Committee ("PHRC") against the DPW, DCBA, Graves, and Sherman based on failure to promote. Although there was a space on the complaint for her to fill in if she was asserting a continuing violation Clark did not mark it as a continuing violation. Three weeks later Clark filed a formal complaint with the DPW's Bureau of Civil Rights Compliance. Although she had previously been friendly with defendant Sherman, after she filed her complaint he no longer spoke to her (Plaintiff's Exh. 22, Clark depo. p. 480), and Helen Wilson, Clark's manager and the superior of her immediate supervisor John Bragg ("Bragg"), on more than one occasion told Bragg that she didn't think that Clark should be filing complaints and creating problems. (Bragg depo. pp. 106-107).

 In March of 1987 John Shelton, the President of the Chester County NAACP, contacted Sherman to request a meeting to discuss Clark's charges of discrimination. (Letter from C. Horsey to Sherman). During that same month defendant Sherman said to Marmelo in reference to Clark "I guess the colors are changing to fast for her." (Marmelo Civil Service Commission testimony pp. 44-45 ). Clark interprets this as a reference to the fact that while two of the six Supervisors who had left since 1985 were black, all of the applicants who filled the vacancies were white.

 On April 2, 1987, Sherman, at a meeting with John Shelton, Clark, and Marmelo rearticulated his position that the civil service exam method was an objective means of filling vacancies. (Clark depo. pp. 314-322, 336-337). At this meeting Marmelo confirmed that Sherman had made the statement regarding the "changing colors" at the DCAO. (Clark depo. pp. 326, 329; Marmelo depo. pp. 140-142).

 The next day, April 3, 1987, Sherman held a meeting where black employees asserted that they were denied equal opportunity in promotions. In response to these complaints Sherman reiterated his view that the exam method was an objective way to decide promotions, and that black employees should continue to take the exam. (Clark depo. pp. 354-356, 359).

 In June of 1987 Sherman posted vacancies for two more supervisor positi6ns. This time, however, he chose to fill them through the use of the promotion without exam method as well as through the civil service exam method. (Civil Service Commission Adjudication). As the personnel officer, Marmelo prepared and gave to Sherman a list of relatively equal candidates for the promotions. The list was determined by giving candidates points for seniority and meritorious service. Clark was ranked second out of fourteen on this list. (Civil Service Commission Adjudication P 8).

 John Shelton met with Graves on June 23, 1987 about whether Sherman would be involved in the promotion decisions. During this conversation Graves assured him that Sherman would not be involved in the decisions. (Shelton direct testimony at Civil Service Commission hearing, pp. 128-129; Letter from John Shelton to John White). After the meeting John Shelton sent a letter to the DPW Secretary John White, requesting that Graves also not be directly involved in deciding who would be promoted. (Shelton Letter to John White dated 9-11-87). Clark provides evidence that Graves became aware of this letter. (Graves depo. p. 128).

 In September of 1987, two weeks prior to Clark's interview for the promotion, Betty Emmi, a supervisor in the DCAO, physically struck Clark. (Clark depo. pp.421, 426-327).

 Ultimately the panel for Clark's interview for the promotion was comprised of Sherman, Graves, and Mr. Ted Ellis, a party not involved in the litigation. As was the norm there were proctors in the room during the interview. However, Graves decided not to have Marmelo proctor the interview, which he normally would do as the personnel/ affirmative action officer, because she had heard from Sherman that Clark and Marmelo were having an affair. (Graves depo. pp. 161-162). Furthermore, although Clark had a right under the internal guidelines to be informed in advance of who would be on her interview panel she was not so informed. (Clark depo. pp. 78-479). When Clark saw that defendants Graves and Sherman were on the panel she asked them if they could be objective, they both replied that they could, and the interview began without incident. (Graves depo. p. 146; Clark depo. p. 459-460).

 The panel rates the interviewees on a scale of one to four, with four being the highest, in three categories. The three categories are 1) judgment and problem solving, 2) communications, and 3) interpersonal relationships. (Clark Interview Tally Sheets and Evaluations). Sherman revised his interview scores for one of the interviewees, Jennifer Gilliam, increasing them in two categories. (Gilliam interview Tally Sheets and Evaluations). Interview scores can only be changed if there is at least a two point difference in a scoring category by another panel member. (Sherman depo. pp. 401-402). That was not the case, however, and Sherman cannot explain why he increased Gilliam's score. (Sherman depo. pp. 410- 412). Clark was not selected for promotion. The two people chosen were Carolyn Ross (a white female) and Jennifer Gilliam (a black female). (Def.'s answers to Pl.'s first set of interrogatories P 5).

 Ross's interview score had been substantially higher than the rest and she was a clear choice for one of the positions. (Sherman depo. pp. 416-418). The increase in Gilliam's score resulted in a three way tie for the next highest score between three black women: Sylvia Dennis, Jennifer Gilliam and Clark. The panel decided to use education as a tie breaker and Jennifer Gilliam was selected. (Sherman depo. pp. 425-426). If they had used seniority instead of education to break the tie Clark would have received the position. (Promotion Without Exam Ranking Chart).

 In October of 1987 Clark filed an amended charge of discrimination with the PHRC asserting that Sherman, Graves and the DPW had retaliated against her because she filed her original claim of discrimination. Her allegations of retaliation included the denial of promotion in September of 1987, being struck by supervisor Emmi, and being subjected to a hostile work environment. On October 19th Clark also filed a charge of discrimination with the Pennsylvania Civil Service Commission alleging that she was denied a promotion in September 1987 due to her race.

 In November of 1987 all of the district managers were reassigned, and defendant Montgomery, who had been the district manager in Upper Darby, was reassigned to the Penn District where Clark worked.

 Beginning in 1988 Clark was overloaded with cases (Clark Affidavit, P 2) and in March she sent a complaint to the Bureau of Civil Rights Compliance focussing on the way work was distributed to caseworkers. On March 2, 1988 the civil service appeal of Clark's denial of promotion began, and that same month her unit was the first to undergo a food stamp audit.

 In May of 1988 an anonymous letter was sent to the Office of the Inspector General ("OIG") accusing Clark of fraud, abuse of time, and abuse of phone privileges. (Letter to the OIG from "Anonymous" dated 5-3-88). Later that summer Clark's immediate supervisor, Bragg, submitted a positive evaluation of her to Elizabeth Rich his designated reviewing officer. When Rich signed the review she added comments noting that she had requested documentation to support Bragg's "Exceeding Standard" review but that she had not received any, and that the evaluation had been signed by Bragg and Clark before it had been submitted to her for her signature. (Rich depo. pp. 132-138).

 In August of 1988 Montgomery sent a memo to Sherman regarding errors found in eleven of Clark's cases through the audit process. (memo from Montgomery to Sherman dated 8-30-88). She also forwarded this memo to Rich and Bragg (memo from Montgomery to Rich and Bragg dated 9-22-88), who responded that the errors were normal for someone with that heavy a caseload.

 In October 1988 the OIG investigated the anonymous charges against Clark. On October 27, 1988 Clark sent a letter to the PHRC alleging that the OIG investigation constituted retaliation and expressing her belief that it was perpetrated by Sherman. This was docketed as her third PHRC complaint. In January of 1989 the OIG closed its file having concluded that the allegations were unsubstantiated.

 In November of 1988 Clark filed her fourth PHRC complaint alleging retaliation. This complaint focussed on Clark's recent performance evaluation and the comments added by Rich, as well as Montgomery's review of Clark's case files in connection with the audit. Clark alleges that that same month Montgomery asked Bragg to lower his evaluation of Clark, and threatened to have his evaluation lowered if he did not do so. (Bragg Civil Service Commission Complaint pp.3-4).

 On January 26, 1989, the Pennsylvania Civil Service Commission found that the DPW and Sherman had discriminated against Clark because of her race in the promotion process in early 1987 and ordered her promoted to supervisor at the next available vacancy. (Civil Service Commission Adjudication dated 1-26-89). Clark alleges that Sherman then dragged his feet to actually promote her. It was also in January that the Bureau of Civil Rights Compliance began a full scale review of the DCAO.

 In April of 1989 Clark was promoted to Supervisor along with two other caseworkers. She was assigned to District Office ("D.O.") #1 as she had requested, but was temporarily relocated to DO. #3.(Montgomery depo. pp. 375-378). Clark also presented evidence that Montgomery and Rich sanctioned insubordination from caseworkers under Clark, and engaged in other behavior which made Clark's job more difficult and undermined her authority. (Montgomery depo. pp. 237-266).

 In May of 1989 the Civil Rights Compliance Report found problems in the DCAO. (Civil Rights Compliance Administrative Review). That month Marmelo was transferred to the Philadelphia office because of strained relations with Sherman. (Marmelo depo. Vol. II pp. 6-12). Marmelo appealed his transfer to the Civil Service Commission and was returned to the DCAO on December 12, 1989. (Marmelo depo. Vol. II, p. 33).

 In July of 1989 Clark filed her fifth PHRC complaint alleging retaliation based on the delay in effectuating her promotion, and because of her temporary relocation to D.O. #3. Three months later, in October of 1989, Sherman was reassigned to Harrisburg after an article about Clark's case was published in the Delaware County Times. Sherman worked in Harrisburg until his retirement in 1990.

 One year later, in October of 1990 John Bragg, Clark's immediate supervisor, left his position, and Dot Laume, a manager within the DCAO, became Clark's immediate supervisor. Laume repeatedly questioned Clark about when and if she would be leaving the DCAO. (Clark depo. pp. 119-120). That same month Clark was the sole applicant for a vacancy in the position of County Trainer for Delaware County, and on October 30th she was awarded the position.

 Because Eagan-Patrick had received the training in Harrisburg she trained the supervisors under Clark in the computer system instead of Clark. Eagan-Patrick then finished the training of the incoming caseworkers that Clark had been working on during the computer training in Harrisburg. (Norman depo. pp. 193-207).

 In 1993 Clark received an anonymous phone call saying "you're going to lose your job, nigger." Clark reported the call to management, but no action was taken to discover who made the call. (Clark depo. pp. 733-734). On March 16, 1993 Clark filed suit in Federal Court in the Eastern District of Pennsylvania claiming violations of Title VII, the PHRA, and 42 U.S.C. § 1983 (Pl.'s Complaint).

 The following are undated events which Clark relies upon in her complaint: she was locked out of her office many times (Clark depo. pp. 734-735) rumors were spread that she had had affairs with both Marmelo and Bragg (Bragg depo. p. 109; Graves depo. pp. 161-162), a supervisor had a whip mounted on her wall in her office for approximately six years despite complaints that it was offensive (Clark depo. pp. 661-664), and only minority caseworkers were assigned to the housing projects (Clark depo. pp. 729-730). The procedural history of Clark's filing of her administrative complaints is as follows: - February 24, 1987: Clark filed her first PHRC complaint based on discrimination; - October 9, 1987: Clark file her second PHRC complaint based on discrimiation and retaliation in the promotions in the autumn of 1987; - October 27, 1988: Clark filed her third PHRC complaint based on retaliation, in particular alleging that Sherman perpetrated the OIG investigation; - January 4, 1990: Clark was sent a right to sue letter from the EEOC for her October 27, 1988 complaint; - November 1, 1988: Clark filed her fourth PHRC claim based on retaliation; - July 7, 1989: Clark filed her fifth PHRC complaint based on retaliation, in particular alleging that Sherman delayed the implementation of her CSC ordered promotion to supervisor; - November 11, 1990: Clark was sent a right to sue letter from ...


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