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VISNIKAR v. DEPARTMENT OF ENVIRONMENTAL PROTECTION

January 27, 2004.

MELISSA VISNIKAR, Plaintiff,
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., Defendants



The opinion of the court was delivered by: FRANCIS CAIAZZA, Chief Magistrate Judge

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the reasons stated below, it is respectfully recommended that the Defendants' Motion for Summary Judgment (Doc. 19) be granted.

  II. REPORT

 BACKGROUND

  A. Procedural History

  Melissa W. Visnikar ("the Plaintiff") is a female geologist, who currently works at the Department of Environmental Protection, Bureau of Oil and Gas Management ("the DEP"). See generally Compl. (Doc. 1). On May 28, 2002, the Plaintiff commenced this action against the DEP and various members of its management (referred to collectively as "the Defendants"). See generally id. The individuals named in the complaint include: Thomas Flaherty ("Flaherty"), the Page 2 DEP's Technical Services Chief; David Janco ("Janco"), the DEP's Program Manager; and Jim Erb ("Erb"), the DEP's Bureau Director. See id. ¶¶ 6, 7 & 8. The Complaint generally alleges "employment discrimination and harassment based on gender/sex and retaliation for engaging in protected acts." See id., "Complaint." The Plaintiff was allegedly discriminated against "by being denied promotion[s] and reclassification, while other, less qualified males with less seniority who were trained by the Plaintiff were promoted over her. . . ." See id. ¶ 13(a). In addition, the Plaintiff claims she was "harassed and subjected to sexual innuendo and sexually offensive comments." See id. ¶ 13(b). As the Plaintiff has characterized the suit in her subsequent briefing, "[t]he crux of this case is whether Plaintiff, one of the only female geologists, who has worked in the same position for over a decade at the DEP, was continually discriminated against, subjected to a hostile work environment, unlawfully denied a promotion, and retaliated against, all because of her gender." See Pl.'s Resp. to Defs.' Mot. for Summ. J. (Doc. 25; hereinafter cited as "Pl.'s Br.") at 1.

  The Complaint specifically alleges the following claims against the various Defendants: Page 3

 
Employment discrimination against the DEP in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Equal Pay Act, 29 U.S.C. § 206(d) ("the EPA"). See Count I;*fn1
Federal civil rights violations against all Defendants based on the alleged denial of equal protection as provided by the Fourteenth Amendment under 42 U.S.C. § 1983 ("Section 1983"). See Count II;
Pendant state claims against all Defendants based on alleged violations of the Pennsylvania Human Relations Act, 43 P.S. Section 951 et seq. ("the PHRA"). See Count III; and
Aiding and abetting employment discrimination claims against Flaherty, Janco, and Erb under the PHRA, 43 Pa. C.S.A. Section 955(e). See Counts IV, V, VI.
  The Plaintiff seeks, inter alia, injunctive relief; actual and consequential damages, including back and front pay with prejudgment interest; compensatory, punitive, and nomimal Page 4 damages; litigation costs; and any other relief the court finds just. See "Wherefore" Clauses.

  On August 5, 2003, the Defendants filed a Motion for Summary Judgment ("the Defendants' Motion" or "Motion"). See Mot. for Summ. J. (Doc. 19; hereinafter cited as "Defs.' Mot."). On the following day, the Defendants submitted: a supplement to their Motion, see Supplement to Mot. for Summ. J. (Doc. 20; hereinafter cited as "Defs.' Supp."); a supporting brief, see Br. in Supp. of Mot. for Summ. J. (Doc. 21; hereinafter cited as "Defs.' Br."); and a statement of material facts, see Defs.' Facts.

  In turn, on November 24, the Plaintiff filed: a response brief, see Pl.'s Br.; various exhibits, see Pl.'s App. of Exs. in Resp. to Defs.' Mot. for Summ. J. (Doc 26; hereinafter cited as "Pl.'s Exs."); and a statement of disputed material facts, see Pl.'s Facts. The briefing has come to a close and the matter is now ripe for adjudication.

  B. Facts

  The Plaintiff has been employed at the DEP since 1992. See Letter from Duritsa to Visnikar dated July 26, 1992 (attached as Ex. F4 to Pl.'s Exs. at 3) (confirming the Plaintiff's employment at the DEP). From 1993 to 2001, she held the position of "Geologist I." See EEOC Charge of Page 5 Discrimination (attached as Ex. A to Pl.'s Exs.; hereinafter cited as "EEOC Charge"). In April, 2001, she was reclassified as a "Geologic Specialist." See Letter from Coakley to Visnikar dated Apr. 6, 2001 (attached as Ex. G to Defs.' Mot.; hereinafter cited as "Reclassification Letter") (informing the Plaintiff of change of classification, effective April 21, 2001). By the Plaintiff's own admission, she has not obtained a professional geologist's license.*fn2 See Dep. of Melissa W. Visnikar (attached as Ex. A to Defs.' Mot.; hereinafter cited as "Visnikar Dep.") at 42.

  In 1997, Flaherty, the Chief of the Technical Services Section of the Gas and Oil Program, allegedly assigned to the Plaintiff the title of "Senior Geologist," a position that entailed, among other responsibilities, providing "training and assistance" to geologist trainees.*fn3 See Decl. of Melissa Visnikar (attached as Ex. K to Pl.'s Exs.; hereinafter cited Page 6 as "Visnikar Decl.") ¶¶ 3 & 4 and accompanying exs.; see also Pl.'s Facts ¶ 2. During this time, she trained two less senior male geologists in her unit: Eric Draper ("Draper")*fn4 and Robert Swansboro ("Swansboro")*fn5. See Pl.'s Facts ¶ 2. Both Draper and Swansboro have been licenced through the grandfathering process. See Flaherty Dep. at 48, 55.

  Between April 1997 and April 2000, the Plaintiff received strong appraisals from her supervisors. See Pl.'s Br. at 6. In fact, her annual reviews identify the Plaintiff's performance in all areas during this time period as either "Commendable" or "Outstanding." See id.; see also Employee Performance Reviews (attached as Ex. J to Pl.'s Exs.).

  At some point prior to February 1999, the Plaintiff allegedly communicated to Flaherty her desire to be promoted to a Geologist II position. See Pl.'s Br. at 6-7; Flaherty Dep. at 41-43. During this "informal discussion," Flaherty Page 7 informed the Plaintiff that he would discuss the matter with his supervisor, Janco. See Flaherty Dep. at 41-42. Flaherty and Janco allegedly concluded that because "the personnel people were rewriting the class specifications for the geologist series[,]" they "agreed that rather than try to present a request for reclassification when the class specs were being rewritten that it seemed to make more sense to wait for reclassification to be completed and then address it if [they] could." See id. at 42.

  In February of 1999, the Plaintiff filed a grievance ("the 1999 Grievance") with her employer and/or her union based on the denial of her promotion to Geologist II ("the 1999 Promotion Denial"). See EEOC Charge. While the parties have not outlined in detail the process through which the 1999 Grievance reached its final disposition, the Plaintiff's deposition testimony indicates that the Plaintiff's union determined not to arbitrate the issue, and that it was denied and withdrawn on January 11, 2001. See Visnikar Dep. at 12-13; see also EEOC Charge.*fn6

  On April 6, 2001, the DEP adopted a new classification system ("the 2001 Reclassification"), as evidenced by a letter Page 8 issued by the DEP's Bureau of Personnel stating: "On March 14, 2001, the Executive Board formally adopted a new classification series for geologists and hydrologists based on a settlement between the Commonwealth and AFSCME." See Reclassification Letter.

  Pursuant to the reclassification, the Plaintiff's former classification as "Geologist I" became known as "Geologic Specialist," a fact that otherwise had no effect on the Plaintiff's status or salary. See id.

  However, the position of "Geologist II" — the position previously sought by the Plaintiff — was now classified as "Licensed Professional Geologist." See Flaherty Dep. at 34; see also Professional Geologist Implementation (attached as Ex. I to Defs.' Supp.; hereinafter cited as "Implementation Chart") at 6. As the title suggests, a professional geologist license was now required to assume that position. See Defs.' Br. at 12.

  Through this reclassification, Draper and Swansboro were both promoted to the position of Licensed Professional Geologist, which increased their salaries to paygrade 8. See EEOC Charge. In contrast, the Plaintiff, as Geologic Specialist, remained at paygrade of 7. See id. The court will refer to these events as "the 2001 Failure to Promote". Page 9

  On June 1, 2001, the Plaintiff filed a complaint with the EEOC ("the EEOC Charge"). See Pls.' Facts ¶ 4. The EEOC Charge indicates that it was cross-filed with the Pennsylvania Human Relations Commission.*fn7 See EEOC Charge. The EEOC Charge alleges unlawful discrimination claims under Title VII — the first based on the Plaintiff's sex, and the second based on retaliation for the Plaintiff's filing of the 1999 Grievance. See id. It also alleges a violation of the EPA. See id. As the parties dispute the precise scope of the EEOC Charge, its substance will be explored in greater detail below. See discussion, infra, at 11-18. The EEOC dismissed the Plaintiff's claims. See EEOC Dismissal and Notice of Rights (attached as Ex. to Compl.). In a letter dated January 25, 2002, the EEOC clarified: "The evidence obtained in the investigation of the [EEOC Charge] thus far does not support your allegation of sex and/or retaliation discrimination. Respondent has met its burden of articulating a legitimate, non-discriminatory reason for its action. . . ." See Letter Page 10 from Sinkler to Visnikar dated Jan. 25, 2002 (attached as Ex. D to Defs.' Mot.; hereinafter cited as "EEOC Explanation Letter").

  In addition to the facts identified above, the Plaintiff alleges that "throughout my 11 years at Defendant DEP, I was subjected to degrading, hostile comments that the male employees were not subjected to[,] such as David Janco, Program Manager and Tom Flaherty's supervisor (my boss' boss) telling me to `lick my fingers' after he ate a cinnamon roll during a meeting, and to speak softly in the office." See Visnikar Decl. ¶ 8.*fn8 Page 11

  C. Legal Standard

  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 judgment as a matter of law." See Fed.R.Civ.P. 56(c). Page 12 An issue is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the suit under governing law. See id.

  The party seeking summary judgment always bears the initial responsibility of informing the district court of the basis of its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." See id. at 325.

  After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential Page 13 to that party's case, and on which that party will bear the burden of proof at trial." See Celotex, 477 U.S. at 322. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. See Anderson, 477 U.S. at 255 (citation omitted).

 ANALYSIS

  1. The Plaintiff Has Failed to State Claims Under Title ...


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