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VERNEY v. PENNSYLVANIA TURNPIKE COMMN.

October 26, 1995

JACQUELINE M. VERNEY, plaintiff
v.
PENNSYLVANIA TURNPIKE COMMISSION; JAMES J. DODARO; HOWARD YERUSALIM; ROBERT A. BRADY; JAMES F. MALONE, III; JOHN L. SOKOL, JR.; S. MICHAEL PALERMO; JOSEPH L. DIRIENZO; SAMUEL L. CARNABUCCI; MELVIN M. SHELTON; WALTER J. LAWSON; LOUIS R. MARTIN; KEVIN F. LONGENBACH, defendants; CHARLES CHRISTY, unknown



The opinion of the court was delivered by: CALDWELL

 I. BACKGROUND

 This action arises from the Plaintiff's employment with the Pennsylvania Turnpike Commission ("Commission") as its Assistant Counsel.

 In 1992, Defendant Kevin Longenbach was selected for promotion to the position of Deputy Chief Counsel. Plaintiff had applied for the position as well. On September 14, 1992, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), charging the Commission with unlawful gender discrimination as a result of her nonpromotion. Thereafter, she received a right-to-sue letter and commenced an action in this court, alleging, inter alia, that the Commission violated Title VII of the Civil Rights Act of 1991. On July 1, 1994, during the pendency of that proceeding, Plaintiff was discharged from her employment with the Commission. *fn1"

 Plaintiff instituted this action against the Commission (Count I) and various of its present and former employees (Count II) on January 6, 1995. In Count I, she alleges that the Commission violated section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), by discharging her in retaliation for her complaint to the EEOC concerning the promotion referred to above. In Count II, Plaintiff contends that the individual Defendants violated her due process rights under the Fourteenth Amendment.

 Pending before the court are three motions for summary judgment. The first was filed on behalf of Defendants Carnabucci, DiRienzo, Lawson, Longenbach, Palermo, and Shelton ("Carnabucci Defendants"). *fn2" The second was filed by Defendants Brady, Dodaro, Malone, Martin, Sokol, and Yerusalim ("individual Defendants"), and the final motion was filed by the Commission.

 II. LAW AND DISCUSSION

 A. Standard of Review

 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." Fed. 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. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986). Summary judgment must be entered in favor of the moving party "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).

 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. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," and cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (emphasis in original) (citation omitted). However, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986) (internal citations omitted).

 B. Title VII Claim

 In Count I, Plaintiff contends that she was discharged because she filed a complaint with the EEOC charging the Commission with gender discrimination. Section 704(a) of Title VII provides that

 
It shall be an unlawful employment practice for an employer to discriminate against any employee. . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

 42 U.S.C. § 2000e-3(a).

 Normally, we would first determine whether this is a "mixed motives" case, as set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), or a "pretext" case, such as McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). *fn3" However, we need not consider that issue because both parties proceed on the theory that this is a pretext case. See Brewer v. Quaker State Oil Refining Corp., 874 F. Supp. 672, 681 (W.D.Pa. 1995). Although Plaintiff contends that she has produced direct evidence of discrimination, she has not argued that this action is appropriate for a "mixed motives" analysis. Accordingly, we will, at this time, consider this a pretext case. *fn4"

 We note that in treating this as a pretext case, we are not foreclosing the possibility of a "mixed motives" charge to the jury if sufficient direct evidence of discrimination is produced at trial. In Armbruster v. Unisys Corp., 32 F.3d 768 (3d Cir. 1994), the trial court granted summary judgment in favor of the defendants on "mixed motives" and on pretext. The Third Circuit affirmed the "mixed motives" decision, but reversed the pretext. However, the court expressly recognized the possibility of a "mixed motives" charge at trial:

 
We do not mean to suggest that an employee must elect to proceed on either a pretext or a Price Waterhouse theory at trial. Rather, we think that an employee may present his case under both theories and the district court must then decide whether one or both theories properly apply at some point in the proceedings prior to instructing the jury. While the evidence here presented to us at the summary judgment stage does not trigger the Price Waterhouse framework, the evidence presented during trial may.

 Id. at 781-82 n.17; see also Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1098 (3d Cir. 1995). Thus, if Plaintiff pursues a "mixed motives" case at trial *fn5" , we will determine, at some point prior to charging the jury, whether she is entitled to a Price Waterhouse charge.

 In a pretext case, a plaintiff claiming retaliatory discharge must first establish a prima facie case of discrimination, by showing that:

 
(1) she engaged in a protected activity; (2) she was subsequently subjected to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action.

 Barber v. CSX Distribution Services, 68 F.3d 694, 1995 U.S. App. LEXIS 28802, 1995 WL 608519, *7 (3d Cir. 1995) (citation omitted). If there is no direct evidence of a causal link, the Plaintiff "may use circumstantial evidence, including the length of time between when the employer received noticed of the protected activities and the employee's termination." Walker v. IMS America, Ltd., 1994 U.S. Dist. LEXIS 18620, No. 94-4084, 1994 WL 719611, *8 (E.D.Pa. Dec. 22, 1994) (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 110 S. Ct. 725, 107 L. Ed. 2d 745 (1990)).

 If the plaintiff succeeds in proving a prima facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for its actions. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). If the defendant carries its "relatively light burden by articulating a legitimate reason for the unfavorable employment decision, the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation is pretextual (thus meeting the plaintiff's burden of persuasion)." Id. (parenthetical in original). In order to establish pretext, and survive summary judgment,

 
the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than ...

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