On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civil Action
BEFORE: STAPLETON, SAROKIN, *fn1 and ROSENN, Circuit Judges BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE and ROSENN, Circuit Judges
Opinion Filed: April 11, 1997
Plaintiff Beverly Azzaro worked for Allegheny County in various capacities from March, 1979, until June 19, 1992, when she was discharged from her position as marketing coordinator in the Allegheny County Department of Development. Azzaro claims that her discharge was in retaliation for her reporting an incident of sexual harassment by an executive assistant to the County Commissioner. The district court entered summary judgment against Azzaro.
We conclude that there was sufficient evidence from which a reasonable factfinder could conclude that there was a causal link between plaintiff's report of sexual harassment and her termination. We also conclude that plaintiff's report of sexual harassment is constitutionally-protected speech. We will reverse the district court and remand for a resolution of the remaining factual issues.
Because we are obligated on summary judgment to view the facts in the light most favorable to the nonmoving party, we will present Azzaro's version of the events leading up to her discharge. According to Azzaro, the chain of events that resulted in her termination began on June 11, 1991 -- just over a year before she was discharged -- when her husband, who was also employed by the County, had a verbal confrontation with employees of the County Department of Employee Relations regarding the manner in which the Azzaros' daughters were treated in connection with their applications for jobs as County lifeguards. The Director of the Department of Employee Relations reported the incident to Harry Kramer, who was an executive assistant to then-County Commissioner Tom Foerster, indicating that his employees were upset by Mr. Azzaro's behavior. Kramer instructed Wayne Fusaro, another of Foerster's executive assistants, to speak with Mr. Azzaro and request that he apologize. Fusaro spoke with Mr. Azzaro, and Mr. Azzaro apologized to the appropriate people.
Azzaro learned of these events a day or two later through her husband and a co-worker, Donna Brusco. She was told by the co-worker that Mr. Azzaro's job might be in danger as a result of the incident. Fearing for her husband's position and hoping to smooth things over, Azzaro went to Commissioner Foerster's offices to talk to Fusaro. Azzaro testified that, after she had entered Fusaro's office and seated herself, Fusaro shut the office door and pulled a chair very close to hers. He then began pulling open the lapels of her blazer, saying "let me see." App. 120. She tried to hold the blazer shut, telling him to stop, and saying "[w]hat the hell is wrong with you," but he put his hand inside and pulled her blouse out of her slacks. App. 121. Azzaro continued to try to evade Fusaro, standing when he sat down and sitting when he stood. Suddenly, Fusaro unzipped his pants and put his hand inside the zipper. App. 122. Azzaro stood up and said loudly, "[a]re you nuts." Id. As soon as plaintiff "got loud," Fusaro "assumed . . . [a] professional attitude." App. 123. He sat down at his desk and took a phone call. After he hung up, he said, "Beverly, I want you to promise what happened here is never going to go any further." App. 124. Azzaro promised.
Allegheny County's policy regarding sexual harassment defines it as conduct "includ[ing] any unwelcome sexual advances, request for sexual favors, and other verbal, visual, or physical conduct of a sexual nature." App. 56. Under the terms of the policy, an employee who has been subjected to sexual harassment "should bring the matter to the immediate attention of his or her supervisor." Id. Following such a report, the County Equal Employment Opportunity Director is required to "promptly investigate . . . in as confidential a manner as possible" and to submit a report to the Director of Administration within thirty days. Id. It is the Director of Administration who is authorized to "take appropriate corrective action." Id.
Azzaro did not immediately report the sexual harassment incident with Fusaro to her supervisor. However, she did tell her daughters of the incident on the day it occurred, and she told her husband and a friend the following day. She and her husband decided at that time not to report the matter or pursue it further for fear that they could lose their jobs.
In October 1991, Azzaro did finally tell her supervisor, Tom Fox, of the incident. She first brought the matter to Fox's attention at a party, during a discussion of Anita Hill's testimony at the Clarence Thomas confirmation hearings. Fox expressed shock and urged Azzaro to report the incident and pursue it through the proper channels. The following Monday, he called her into his office, asked her to repeat the story, and pressed her once again to report the incident to the Director of the Department of Development, Joe Hohman. He told her that if she did not report it, he would be obliged to do so on his own. Azzaro asked him not to do so, telling him, "I . . . [am] scared for my job and my husband's job." App. 163.
Subsequently, Fox told Hohman himself. In so doing, he impressed upon Hohman that he was telling him in confidence and that Hohman should not take any action unless he felt that he had an obligation to do so as director of the department. Hohman told Fox that if Azzaro wanted to pursue the matter, she would have to report to him directly.
Meanwhile, Hohman was growing concerned that his relationship with Commissioner Foerster was deteriorating because Foerster no longer sought his input or advice. Hohman scheduled a meeting with Commissioner Foerster in December, 1991 to address these concerns. Foerster invited his executive assistants, Fusaro and Kramer, to attend. During the course of the meeting, Hohman stated that he "had problems with the people [Foerster] was surrounding himself" with, such as Wayne Fusaro. Hohman testified that he said at the meeting,
Wayne Fusaro . . . potentially has a sexual harassment case coming against him from an employee in my office who I cannot name because the employee has not given me permission to name, but it occurred right upstairs in this office, Commissioner, over a summer job for her daughters.
App. 361-62. Both Foerster and Kramer offered a slightly different account, testifying that Hohman mentioned a possible lawsuit against Fusaro but did not say that it concerned allegations of sexual harassment or offer any other details regarding the incident or the alleged victim. However, both men have testified under oath in a related case that Hohman accused Fusaro of sexual harassment at that meeting. App. 306, 433. *fn2
Just as this meeting was taking place, Azzaro reported the harassment incident to the County Director of Administration, Sal Sirabella, the official ultimately responsible for reviewing reports of sexual harassment and deciding what corrective action to take. When he asked what she wanted him to do, she replied: "I don't know what to do. That's why I'm here." App. 146-47. Sirabella allegedly replied, "[L]et's leave it alone for now . . . . " App. 147. Azzaro testified that she did not ask Sirabella to keep their conversation confidential. According to Sirabella, however, Azzaro asked him to keep the content of their conversation confidential. Mr. Azzaro, who attended the meeting with Sirabella, also indicated that he thought his wife told Sirabella that "she'd prefer him to keep it confidential." App. 225. Sirabella did not take any action.
That evening, Donna Brusco phoned Azzaro at home. She had spoken to Fusaro about the incident in Commissioner Foerster's office. Brusco told Azzaro that Joe Hohman had been in Commissioner Foerster's office that day, that he had been "extremely upset," and that he "was screaming at Commissioner Foerster that Wayne [Fusaro] was a pervert." App. 168. Brusco said that Fusaro had been too upset to tell her all the details. She then asked Azzaro why she had gone to see Sirabella that day. Subsequently, Fusaro asked Sirabella "three or four times" what the purpose of Azzaro's visit had been. App. 172.
Azzaro alleges that she was fired in retaliation for her reporting of the Fusaro incident. According to Azzaro, this retaliation was initiated by Fusaro and Brusco. Fusaro began by calling Don Kovac, who was the Director of Employee Relations during the relevant time period and was responsible for coordinating personnel activity for all County employees. Fusaro told Kovac that he suspected that the Department of Development, where Azzaro worked, had employees on the payroll who were disloyal to Commissioner Foerster. He asked Kovac to allow Donna Brusco and another member of the Employee Relations Department to "review the entire payroll in the Department of Development to pick out people that were loyal to Foerster and people that were loyal to Brimmeier," who was Foerster's opponent. App. 417. Because Brusco had worked for the Department of Development until she was transferred to the Employee Relations Department at Fusaro's request in the fall of 1991, she was believed to be familiar with the entire Department of Development payroll and aware of people's loyalties. Fusaro told Kovac that he had authorization to compile the list from both Commissioner Foerster and Harry Kramer, Foerster's other executive assistant. Accordingly, Kovac granted his permission and appointed John Chapman, another employee of the Employee Relations Department, to assist Brusco.
Sometime between February and April 1992, Chapman and Brusco reviewed the list of Department of Development employees in accordance with Fusaro's request. As they did so, Brusco identified certain names as pro-Foerster or anti-Foerster. Azzaro alleges that the list of anti-Foerster names was a "hit list" and that she was a target. Indeed, Chapman testified that he had heard Fusaro say on more than one occasion that Brimmeier supporters would be "retaliated against." App. 273. When Chapman and Brusco reached Azzaro's name, according to Chapman, Brusco said, "We're going to get this bitch." App. 279.
Meanwhile, in March 1992, George Braun replaced Hohman as Director of the Department of Development. Braun caused the Department of Development to enter into an agreement with the federal Department of Housing and Urban Development (HUD) which required the County department to spend less than the permitted amount on administrative expenses for three years, to offset excess administrative expenses incurred in prior years. Braun pursued this agreement in response to a HUD directive requiring the department to reduce the portion of its budget dedicated to administrative expenses by two or three percent in order to retain its federal funding. While this same federal directive had been in place during Hohman's tenure as Director of the Department of Development, Hohman had not taken steps to address it because he believed the problem would correct itself over time.
Braun also drafted a proposal to reorganize the department by, among other things, merging several divisions and eliminating the Marketing Division, in which Azzaro worked. Under the heading "Positions to be Terminated," the proposal specifically named Azzaro and Tom Fox, the supervisor to whom she had first reported the harassment incident, along with two employees whose pensions had already vested. App. 31. At the same time, the proposal recommended hiring nine new employees and increasing the salaries of eight others.
Braun submitted this proposal to Commissioner Foerster's office, which approved it and passed it on to the Salary Board. On June 18, 1992, the Salary Board approved the proposed restructuring of the Department of Development. The following day Braun told Azzaro that her position would be eliminated as of August 1 due to budgetary reasons unrelated to her job performance. No effort was made to find another position for Azzaro with the County government.
In September, 1993, Azzaro filed this suit against the County of Allegheny, Commissioner Tom Foerster, and Wayne Fusaro. The complaint alleges retaliatory discharge against Allegheny County in violation of 42 U.S.C. Section(s) 2000(e); asserts a claim against all defendants under 42 U.S.C. Section(s) 1983 for infringement of Azzaro's First Amendment rights; and alleges violations of the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Section(s) 955(a), (d) & (e), against Allegheny County. Defendants filed a joint motion for summary judgment which the district court granted, deciding the two federal claims on the merits and declining to exercise supplemental jurisdiction over plaintiff's state-law claims. We exercise plenary review over the district court's decision to grant summary judgment. Commercial Union Ins. Co. v. Bituminous Cas. Corp., 851 F.2d 98, 100 (3d Cir. 1988).
Azzaro alleges that the County violated Title VII by discharging her in retaliation for her reports of sexual harassment. To establish a prima facie case of retaliatory firing in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000(e), a plaintiff must establish that (1) she engaged in a protected activity; (2) she was discharged after or contemporaneously with that activity; and (3) there was a causal link between the protected activity and the firing. Quiroga v. Hasbro, Inc., 934 F.2d 497, 501 (3d Cir. 1991). In this case, the district court concluded that Azzaro had failed to bring forward any competent evidence of a causal connection between her allegations of sexual harassment and her discharge, and therefore granted summary judgment in favor of defendants. Azzaro v. County of Allegheny et al., No. 93-1589, slip op. at 19 (W.D. Pa. Mar. 31, 1995). Specifically, the court found "no competent evidence that those persons involved in the decision to reorganize the [Department of Development] were aware of the alleged sexual harassment prior to the approval of the reorganization." Id.
We disagree. While it is true that Foerster, Kramer, and Braun have denied having knowledge of the alleged sexual harassment prior to the termination, and while there is no evidence that the members of the Salary Board other than Foerster had such knowledge at the time of the Board's action, the district court's conclusion overlooks a great deal of direct and circumstantial evidence favoring Azzaro's position. That evidence would support an inference that Foerster, Kramer, Fusaro, and Braun, with knowledge of the harassment incident and of Azzaro's reports, agreed to "get" her, and that they included a minor provision in the reorganization to accomplish this objective covertly, securing the routine approval of an unsuspecting Salary Board which cared about nothing more than that Foerster had approved the reorganization and that it would save the County money.
First, Azzaro produced evidence showing that Hohman stated at a meeting with Foerster, Fusaro, and Kramer that Fusaro sexually harassed a Department of Development employee who had come to see him in connection with summer jobs for her daughters. As both Fusaro and Kramer had been informed of the incident with Azzaro's husband and had been involved in resolving the dispute, Hohman's statement is sufficient to support a finding that Fusaro and Kramer knew of Azzaro's allegations. Moreover, since Fusaro and Kramer were close personal advisors of Foerster and since Foerster was present at the meeting with Hohman, a reasonable jury ...