United States District Court, W.D. Pennsylvania
January 27, 2004.
MELISSA VISNIKAR, Plaintiff,
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
For the reasons stated below, it is respectfully recommended that the
Defendants' Motion for Summary Judgment (Doc. 19) be granted.
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
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
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
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;
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
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
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
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
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
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
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
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
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
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
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).
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
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).
1. The Plaintiff Has Failed to State Claims Under Title VII and the
a. The Plaintiff has Failed to Exhaust Administrative Remedies in
Regard to Certain Claims.
Before reaching the merits of the Plaintiff's Complaint, the Defendants
argue that the District Court cannot consider several of the Plaintiff's
claims because they were not exhausted in the administrative proceedings
below. See Defs.' Br. at 1-5, 10-11. More specifically, the
Defendants maintain that the court's review is limited to claims relating
2001 Failure to Promote, which represent the only claims presented
to the EEOC. See id. It follows, therefore, that the Plaintiff's
claims based on other theories, including, inter alia, an
alleged hostile work environment and the 1999 Promotion Denial must be
dismissed. See id.
It is well established that to bring suit under Title VII and the PHRA,
a plaintiff must first file a timely administrative charge with the EEOC
or a similar state agency. See 42 U.S.C. § 2000e-5(e);
see also, e.g., Woodson v. Scott Paper Co.,
109 F.3d 913, 925 (3d Cir. 1997). If the plaintiff "fails to exhaust
administrative remedies her claims can be dismissed." See
Zezulewicz v. Port Auth. of Allegheny County, 290 F. Supp.2d 583,
591 (W.D. Pa. 2003). As the United States Court of Appeals for the
Third Circuit ("the Third Circuit Court") has explained, the purpose of
the exhaustion requirement "is to afford the EEOC the opportunity to
settle disputes through conference, conciliation, and persuasion,
avoiding unnecessary action in court." See id. (quoting
Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996)). It also is
intended to benefit the defendant employer by putting it "on notice that
a complaint has been lodged against [it] and gives [it] the opportunity
to take remedial action." See Lawton v. Sunoco, Inc.,
2002 WL 1585582, *4-*5 (E.D. Pa. July 17, 2002)
(citations omitted). Accordingly, "[b]ecause the aim of the
statutory scheme is to resolve disputes by informal conciliation, prior
to litigation, suits in the district court are limited to matters of
which the EEOC has had notice and chance, if appropriate, to settle."
Anjelino v. New York Times Co., 200 F.3d 73, 79 (3d Cir. 1999)
To determine what claims are properly before the District Court, the
test developed by the Third Circuit Court is whether the claims at issue
fall "fairly within the scope of the prior EEOC complaint, or the
investigation arising therefrom." See Antol, 82 F.3d
at 1295 (citation omitted).*fn9 The Third Circuit Court has cautioned
against reading a plaintiff's EEOC Charge too narrowly, stating that
courts must "keep in mind that charges are drafted by one who is not well
versed in the art of legal description." See Hicks v. ABT
Assoc., Inc., 572 F.2d 960, 965 (3d Cir. 1978). Thus, "the scope of
the original charge should be liberally construed."
See id. (citation omitted).
Here, the EEOC Charge identifies the "cause[s] of discrimination" as
two-fold: (1) "sex"; and (2) "other," which is specified as "Equal Pay."
See EEOC Charge. It indicates, as the "Date Discrimination Took
Place" ("the Date Box") from "04/20/2001" to "04/20/2001." See
id. The box labeled "continuing action," however, is also marked.
The narrative portion of the EEOC Charge comprises three paragraphs.
See id. The first paragraph states: that the Plaintiff's
employment began in 1993; that she was assigned "Senior Geologist" in
1997, and trained two less senior, male Geologists; that in April 2001,
the two males were promoted to a paygrade 8, while she remained at
paygrade 7; and that her grievances were denied by the Defendants.
See id. ¶ 1. The second paragraph explains that Flaherty had
previously denied her a promotion in February 1999, and that she filed a
grievance that was later denied and withdrawn. See id. ¶ 2.
It again states that in April of 2001, the Plaintiff was notified that
her male co-workers were being promoted to paygrade 8. See id.
The final paragraph states "I believe that I have been unlawfully
discriminated against because of my sex, female, and in retaliation
[based on the 1999 Grievance], in violation of Title VII. . . .[The
promoted a less senior, less experiences males, while I have been
denied [a promotion]." See id. ¶ 3.
The Plaintiff's alleged hostile work environment claims simply cannot
be construed as "fairly within the scope of the prior EEOC complaint."
See Antol, 82 F.3d at 1295 (citation omitted). The
EEOC charge does not identify a single remark or any other sexually
harassing conduct towards the Plaintiff that would have put either the
EEOC or the Defendants on notice that this type of claim served as the
basis of her action. See Lawton, 2002 WL 1585582 at
*4-*5 (dismissing hostile work environment claim where EEOC Charge
alleged only failure to promote). Nor did the EEOC's investigation appear
to address evidence relating to a hostile work environment
instead, it appears to have been limited to assessing the Plaintiff's
disparate treatment and retaliation claims. See EEOC Explanation
Letter ("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. . . .").
Accordingly, the Plaintiff's hostile work environment claim must be
dismissed. See Zezulewicz, 290 F. Supp.2d at 591 ("If
the plaintiff fails to exhaust administrative remedies her
claims can be dismissed.").*fn10
[EDITORS NOTE: THIS PAGE IS BLANK.]
Nor does the EEOC Charge fairly encompass the Plaintiff's claims
relating to the 1999 Promotion Denial. Both the Date Box, and the
narrative portions of the charge identify the harm as occurring in April
2001 the date when Draper and Swansboro were promoted, and she
was notified thereof. See EEOC Charge. At best, the mention of
the 1999 Promotion Denial was provided as background to explain the
factual basis of the Plaintiff's retaliation claim. Thus, the Plaintiff's
claims based on the 1999 Promotion Denial must also be dismissed.
See Zezulewicz, 290 F. Supp.2d at 591.*fn11
[EDITORS NOTE: THIS PAGE IS BLANK.]
The undersigned therefore finds that the Plaintiff's claims are
restricted to those relating to the 2001 Failure to Promote as
they represent the only claims that are "fairly within the scope" of the
EEOC Charge. The court's analysis may therefore be limited to whether the
2001 Failure to Promote constitutes discrimination based on gender and/or
retaliation under Title VII and the PHRA. To the extent that there are
other claims raised by the Plaintiff, they must be dismissed for failure
to exhaust administrative remedies.*fn12
b. The Plaintiff Has Failed to State a Failure to Promote Claim
under Title VII or the PHRA Based on Gender.
Failure to promote claims brought under Title VII are analyzed under
the familiar burden-shifting framework the Supreme Court articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)("the
McDonnell Douglas analysis"). See, e.g., Fuentes
v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).*fn13 As the Third
Circuit Court has summarized, the McDonnell Douglas analysis
proceeds in three stages. See Jones v. Sch. Dist. of
Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999). First, "the
plaintiff must establish a prima facie case of discrimination." See
id. Second, "[i]f the plaintiff succeeds in establishing a prima
facie case, the burden shifts to the defendant to articulate some
legitimate, nondiscriminatory reason for the employee's rejection."
See id. (citation and internal quotations omitted). Finally,
"should the defendant carry this burden, the plaintiff then must have an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons,
but were a pretext for discrimination." See id. (citation
The Third Circuit Court has further explained that "[w]hile the burden
of production may shift, the ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff." See id. (citation and
internal quotations omitted). In addition, the Third Circuit Court's
experience "is that most cases turn on the third stage, i.e.,
can the plaintiff establish pretext." See id.
Here, the Defendants argue that the Plaintiff has failed to establish a
prima facie case. See generally Defs.' Br. at 8-16. In
the alternative and to the extent the court concludes that a
prima facie case has been established they argue that
they have presented a legitimate, non-discriminatory reason for the
Plaintiff's rejection. See id. They further maintain that the
Plaintiff has failed to come forth with evidence proving that their
reason was a pretext. See id. For the reasons stated below, the
undersigned agrees with the Defendants in all regards.
To establish a prima facie case, the plaintiff must show:(1)
that she belongs to a protected class; (2) that she sought and was
qualified for the promotion; (3) that despite her qualifications she was
rejected; and (4) the failure to promote occurred under circumstances
"that give rise to an
inference of unlawful discrimination" i.e., a
"non-member of the protected class was treated more favorably." See,
e.g., Jones, 198 F.3d at 410-11; Young v. Pennsauken
Township Sch. Dist., 47 Fed.Appx. 160, 161 (3d Cir. Sept 27, 2002);
Shesko v. City of Coatesville, 292 F. Supp. 719, 724 (E.D.
In its two-fold challenge to the Plaintiff's prima facie case,
the Defendants argue: (1) that the Plaintiff was not qualified for the
position of "Licensed Professional Geologist" as she did have a
geologist's licence; and (2) that the Plaintiff has failed to point out
similarly situated males that is, unlicenced male geologists
who received more favorable treatment. See Defs.' Br. at
12-16. The undersigned need not reach the second argument, as the court
finds that the Plaintiff does not possess the objective qualifications
required for the position of Licensed Professional Geologist.*fn14
The Plaintiff does not dispute that the position that she sought
required a license, and that she did not have one. See
Visnikar Dep. at 76 ("Q: And that would be a licensed professional
geologist position that you're seeking? A: Right"); see id. at
57 ("Q: And do you have a license? A: No."). Instead, the Plaintiff
contends that, notwithstanding the licensing requirement, she was as
qualified if not more qualified than her peers who were promoted.
See Pl.'s Br. at 5-8 (noting, among other things: that the
Plaintiff was more senior than the co-workers who were promoted; that she
had trained these co-workers; and that she received exceptional reviews
for the relevant years).
The Third Circuit Court has made clear, however, that within the
context of assessing a prima facie case, a district court must
view a plaintiff's "qualifications" based on objective criteria.
See Goosby v. Johnson & Johnson Med., Inc.,
228 F.3d 313, 320 (3d Cir. 2000) (stating "[w]e have held that . . .
objective job qualifications should be considered in evaluating a
plaintiff's prima facie case . . .") (citation omitted); Sempier
v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (noting
"[w]e determine a plaintiff's qualifications from the purposes of proving
a prima facie case by an objective standard.") (citation omitted). Thus,
the Plaintiff's own subjective opinion that she was qualified for a given
position including the assertions listed above is
immaterial. See Kepple v. GPU Inc., 2 F. Supp.2d 730,
741 (W.D. Pa. 1998) (stating "[t]he employer is entitled to establish
the job requirements and the plaintiff must offer more than his own
opinion that he is qualified") (citing In re Carnegie Ctr.
Assocs., 129 F.3d 290, 293 (3d Cir. 1997)). As the unrefuted
evidence demonstrates that the Plaintiff simply does [not] meet the
objective criterion required for the position of Licensed Professional
Geologist, the undersigned concludes that the Plaintiff is not
"qualified" and therefore has failed to establish a prima facie
Nonetheless, this is not the sole basis for granting summary judgment
in this case. The undersigned recognizes there may be certain instances
where an employer's creation of new qualifications such as the
addition of the licensing requirement pursuant to the 2001
Reclassification could be "self-serving." See Chu
v. Samuel Geltman & Co., 1993 WL 492747, *4 (E.D. Pa. Nov. 17,
1993)(concluding that although plaintiff did not have valid Pennsylvania
real estate license required for the position and was thus not qualified,
it was proper to evaluate defendant's non-discriminatory reason and
pretext plaintiff in the event that the licensing requirement was a
"sham"). The court will, therefore, analyze the Defendants' proffered
reason and the Plaintiff's evidence of
The Defendants have met their burden of articulating a legitimate
reason again, that the Plaintiff was not qualified for the
position due to the fact that she did not have a license, see
Defs.' Br. at 13 therefore the onus rebounds to the Plaintiff,
who must now show by a preponderance of the evidence that the DEP's
explanation was pretextual. See Fuentes, 32 F.3d at
763 (stating "[o]nce the employer answers 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)").
To defeat summary judgment at this stage, the Plaintiff must either:
(1) point to some evidence that discredits the proffered reasons, either
circumstantially or directly; or (2) adduce evidence, whether
circumstantial or direct, that discrimination was more likely than not a
motivation or determinative cause of the adverse employment action.
See id. at 764. For the reasons stated below, the undersigned
concludes that the Plaintiff has failed to meet its burden.
To discredit the Defendants' proffered reason, "a
plaintiff cannot simply show that the employer's decision was wrong
or mistaken, since the factual dispute at issue is whether the
discriminatory animus motivated the employer, not whether the employer is
wise, shrew, prudent, or competent." See Keller v. Orix
Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1996) (citations
omitted). Instead, she must cast sufficient doubt upon the employer's
reason by demonstrating "such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's
proffered reason for its action that a reasonable factfinder could
rationally find them unworthy of credence." See Jones,
198 F.3d at 413 (citation omitted). As the Third Circuit Court has
summarized: "federal courts are not arbitral boards ruling on the
strength of [the] `cause' for [the adverse employment action]. The
question is not whether the employer made the best, or even a sound,
business decision; it is whether the real reason is discrimination."
See Keller, 130 F.3d at 1109 (citation omitted).
Moreover, "the plaintiff must show, not merely that the employer's
proffered reason was wrong, but that it was so plainly wrong that it
cannot have been the employer's real reason." See id.
In this regard, the Plaintiff attempts to discredit the licensing
requirement by alleging that there "is some
question" as to whether a Pennsylvania law requires that geologists
be licensed. See Pl.'s Br. at 7 n.2. The Plaintiff has attached
an exhibit identified as the Commonwealth of Pennsylvania's "Engineer,
Land Surveyor and Geologist Registration Law, Act 367" issued by the
"State Registration Board for Professional Engineers, Land Surveyors, and
Geologists." See Engineer, Land Surveyor and Geologist
Registration Law, Act 367 (attached as Ex. I to Pl.'s Exs.). The
Plaintiff contends that under Section 5 of these provisions, oil and gas
geologists are exempt from licensure and registration requirements.
See Pl.'s Br. at 7 n.2.
Although that very well may be the case, it remains unrefuted that
pursuant to the 2001 Reclassification, it was the DEP's policy that a
license was required to assume the position that the Plaintiff sought.
See discussion, supra, at 7-8, 20-22. The fact that
such a requirement was not mandated by law is simply not sufficient to
create the inference that the licensing requirement was "superficial,"
"irrational," or otherwise "unworthy of credence." See
Chu, 1993 WL 492747 at *5 (holding that the fact that
Pennsylvania law did not require a real estate license did not
demonstrate pretext where "it was [defendant employer's] policy that
full-time rental managers [the position the plaintiff sought] should
have a real estate license"). Nor has the Plaintiff cited authority
suggesting that the DEP was not authorized to impose qualification
requirements above and beyond those required under the relevant law. As
stated above, the court is forbidden from assessing the propriety of the
DEP's decision to add a licensing requirement the question being
only whether the Defendants' actions were motivated by discriminatory
animus. See, e.g., cases discussed, supra, at 23-24;
see also Lewis v. State of Del. Dep't Of Pub.
Instruction, 948 F. Supp. 352 (D. Del. 1996) (stating "an employer is
free to ruin his business with medieval practices, so long as those
practices are not motivated by discriminatory animus"). The undersigned
concludes that the Plaintiff has failed to meet this burden.
The court may therefore limit its analysis to whether the Plaintiff has
adduced sufficient evidence from which a factfinder could reasonably
conclude that discrimination was more likely than not a motivation or
determinative cause of the adverse employment action. See
Fuentes, 32 F.3d at 765. Under this analysis, the Plaintiff may
show, for example, that "the employer in the past had subjected him to
unlawful discriminatory treatment, that the employer treated other,
similarly situated persons not of his protected class more
favorably, or that the employer has discriminated against other
members of his protected class or other protected categories of persons."
The Plaintiff's primary argument is that Draper and Swansboro, the two
less senior co-workers whom she trained were promoted in 2001; whereas
she remained at the same level despite receiving exceptional reviews, and
being named as "Senior Geologist." See Pl.'s Br. at 5-6. She
maintains that the promotion of these allegedly similarly-situated males
clearly demonstrates pretext. See id. at 7.*fn15 The
Defendants, in turn, contend that the comparison to Draper and Swansboro
is unpersuasive, as both Draper and Swansboro are both licensed
geologists, and therefore not similarly situated. The undersigned agrees.
The Third Circuit Court has stated "[i]n determining whether similarly
situated nonmembers of a protected class were treated more favorably that
a member of the protected class, the focus is on the particular
criteria or qualifications identified by the employer as the reason
the adverse action." See Simpson, 142 F.3d at
647 (citation omitted; emphasis added). Moreover, "the plaintiff must
point to evidence from which a factfinder could reasonable infer . . .
that the employer did not actually rely upon the stated criterion."
See id. (citation omitted).
Here, to meet this standard, the Plaintiff would have to establish that
unlicensed male geologists licensing being the criterion
articulated by the Defendants as its nondiscriminatory reason
received more favorable treatment. The Plaintiff has failed to do so. In
fact, the comparison to Draper and Swansboro negate, rather than advance,
the Plaintiff's position. The fact that licensed geologists were
promoted, and unlicensed geologists were not, serves to confirm that the
Defendants decision did, in fact rely "upon the stated criterion."
The Plaintiff's recitation of other qualifications have no bearing on
the court's analysis, as the Defendants have identified licensing as the
sole basis for its decision. See id. (stating "[t]he employee's
positive performance in another category is not . . . relevant, [nor]
is the employee's judgment as to the importance of the stated
(citations omitted); see also Ezold v. Wolf, Block,
Schorr & Solis-Cohen, 983 F.2d 509, 528-29 (3d Cir. 1993)
(finding that plaintiff's abilities in areas other than legal analysis,
the reason identified for not promoting plaintiff, was not relevant in
determining pretext). Thus, the Plaintiff's positive reviews,
assignment to a senior position, and training skills, though admirable,
cannot serve as evidence of pretext in this case. See
Simpson, 142 F.3d at 647 ("the court does not subjectively
weigh factors its considers important.").
In addition, recognizing the Third Circuit Court's admonition to
district courts that "the evidence cannot be viewed in a vacuum," see
id. at 646-47 (citations omitted), the undersigned finds that a
global view of the record confirms the absence of pretext.
The Defendants have submitted a document entitled "Professional
Geologist Implementation," see Implementation Chart, which,
according to the Defendants, illustrates the different reclassifications
for various geologists working for the Commonwealth of Pennsylvania
pursuant to the 2001 Reclassification. See Defs.' Br. at
13-14.*fn16 The undersigned
finds it significant that, while the Plaintiff has addressed two
male co-workers she believes were treated more favorably, the Plaintiff's
Brief does not identify or compare the Plaintiff to any of the
approximately 150 other employees whose positions were reclassified.
See Implementation Chart. In fact, a cursory inspection of this
document reveals that there were males who were reclassified as "Geologic
Specialist," see id. at 2-3 (chart entitled "Lateral
Reclassification to Geologic Specialist"), as well as females who were
promoted to "Licensed Professional Geologist," see id. at 6
(chart entitled "Promotion to Licensed Professional Geologist").
The Third Circuit Court has noted under similar circumstances that a
plaintiff "cannot pick and choose a person she believes is a valid
comparator who was allegedly treated more favorably, and completely
ignore a significant group of [potential] comparators who were treated
equally or less favorably than she." See Simpson, 142
F.3d at 646-47. Accordingly, the undersigned finds that the Plaintiff has
failed to meet its burden of showing pretext based on the comparison to
only a select few of the her co-workers, while neglecting the vast
The Plaintiff's other argument relates to the events
following the 1999 Promotion Denial, and leading up to the 2001
Failure to Promote. The Plaintiff contends that an inference of
discrimination can be drawn from the fact that after she was denied a
promotion in 1999, Flaherty deliberately concealed information, that if
known, would have allowed the Plaintiff to obtain a license and thus be
qualified for the promotion in 2001. See Pl.'s Br. at 6-7
(arguing that, following the 1999 Promotion Denial, "[w]hat [Flaherty]
failed to mention was that he knew: 1) that the 2001 [R]eclassification
would eventually make `licensure' mandatory . . .; 2) that Melissa
was not `licensed'; 3) that she would not have the opportunity to be
`grandfathered in' as the `grandfathering in' procedure would no longer
be available; and 4) therefore, she would not be promoted after the
reclassifications because she was not `licensed.'") (citation omitted).
This argument fails on at least two levels. First, the Plaintiff's
theory finds no support in the portions of the record she identifies as
relevant. See Pl.'s Br. at 7 (citing Flaherty Dep. at 33,
41-43). Nor can she rely solely on her own declaration to establish
these facts. See id. (citing Visnikar Decl.); Longstreet
v. Holy Spirit Hospital, 67
Fed.Appx. 123, 126 (3d Cir. May 22, 2003) ("unsupported assertions,
speculation, or conclusory allegations" are insufficient to avoid summary
judgment) (citation omitted). Second, the Defendants have submitted
evidence demonstrating that the 2001 Reclassification was the product of
negotiations between the Commonwealth of Pennsylvania and the Plaintiff's
union. See Reclassification Letter. The Plaintiff has not
identified nor is the court aware of any authority
imposing an affirmative duty on an employer to speculate as to what
qualifications these entities may find necessary in regard to a
prospective reclassification, or to ensure that each employee who falls
within a protected class will meet that those criteria. See
Ezold, 983 F.2d at 531 ("Title VII, however, does not demand
that an employer give preferential treatment to . . . women.")
(citation omitted). At some point, the impetus must fall upon the
employee to obtain the necessary credentials even if they are
obtained by the perfunctory gesture of filing an application with the
Having carefully considered the parties' arguments and submissions, the
undersigned concludes that the Plaintiff has failed to meet its burden of
showing that the Defendants' proffered reason is pretext. For all the
reasons stated above, the Defendants' Motion should be granted.
c. The Plaintiff Has Failed to State a Failure to Promote Claim
under Title VII or the PHRA Based on Retaliation.
Retaliation claims under Title VII involve the same McDonnell
Douglas burden-shifting analysis as outlined above. See
discussion, supra, at 18-19; see also
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d
Cir. 2003). To establish a prima facie case of retaliation, the
plaintiff must show: 1) she engaged in a protected activity; 2) the
employer took an adverse employment action either after or
contemporaneous with the employee's protected activity; and 3) a causal
connection between the employee's protected activity and the employer's
adverse employment action. See Shellenberger, 318 F.3d
at 187 (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500
(3d Cir. 1997)).
Here, the Plaintiff has failed to proffer sufficient
evidence to establish a prima facie case more
specifically, the Plaintiff has failed to demonstrate a causal link
between the filing of the 1999 Greivance and the 2001 Failure to Promote.
To establish such a link, the Plaintiff must show either temporal
proximity between the events or some other evidence suggesting causation,
such as an ongoing pattern of antagonism. See, e.g.,
Hartman v. Sterling, 2003 WL 22358548, *10 (E.D. Pa. Sept. 10,
2003) (after reviewing Third Circuit case law, stating "[u]nless the
temporal proximity is `unusually suggestive,' it, taken alone, is
insufficient to establish the necessary connection. . . .[Instead,]
timing plus other evidence [such as a pattern of antagonism] is the
appropriate test"); see also Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1302 (3d. Cir. 1997) ("[T]he mere fact
that [an] adverse employment action occurs after a complaint will
ordinarily be insufficient to satisfy the plaintiff's burden of
demonstrating a causal link between the two events") (citation omitted).
Here, over two years elapsed between the two events. See
Krouse, 126 F.3d 503-04 (concluding that nineteen months
between the alleged retaliation and the protected activity was too great
a passage of time to draw an inference of causation without other
evidence of causation). Nor does the record
demonstrate an ongoing pattern of antagonism towards the Plaintiff
based on the retaliatory animus. The Plaintiff's unsupported allegations
that she was subjected to "degrading, hostile comments" are do not
persuade the court otherwise. See Longstreet v. Holy Spirit
Hospital, 67 Fed.Appx. 123, 126 (3d Cir. May 22, 2003) ("unsupported
assertions, speculation, or conclusory allegations" are insufficient to
withstand summary judgment) (citation omitted). When viewed as a whole,
the record simply does not support a finding of causation. See,
e.g., Woodson v. Scott Paper, 109 F.3d 913, 920 (3d Cir.
1997) (stating that in regard to whether evidence is sufficient to
establish causation, district courts must make determinations "based on
the whole picture") (citation omitted). Thus, the record fails to
demonstrate the elements of a prima facie case of retaliation.
Even if the court were to conclude that a prima facie case had
been established, the Plaintiff's claims nevertheless must fail based on
the second and third prong of the McDonnell Douglas analysis.
For the same reasons identified in the previous analysis regarding the
Plaintiff's gender discrimination claims, see discussion,
supra, at 22-34, which rest on the same adverse employment
action, the court finds that the Plaintiff has failed to show that the
requirement was a mere pretext for retaliatory animus. Thus, the
Plaintiff's relation claims must be dismissed.
For all the reasons stated above, the Plaintiff has failed to state a
claim under Title VII and the PHRA, based on either gender and/or
retaliation; accordingly, summary judgment should be granted in favor of
2. The Plaintiff Has Failed to State a Claim Under the EPA.
Before reaching the merits of the Plaintiff's cause of action under the
EPA, the Defendants put forth extensive arguments maintaining that EPA
claims brought against a governmental agency, such as the DEP, are barred
by the states' sovereign immunity under the Eleventh Amendment.
See Defs.' Br. at 18-22. These arguments border on frivolous.
The Third Circuit Court has made clear that states are not immune from
claims brought under the disparate wage provisions of the EPA.
See Arnold v. BlaST Intermediate Unit 17,
843 F.2d 122, 126 (3d Cir. 1988) ("Further, it is well established that
Congress intended to abrogate state immunity from suit in applying the
[EPA's] provision[s] to state or local entities in their role as
employers.") (citations omitted).
The Third Circuit Court's approach represents that majority view, and,
in fact, is consistent with the decisions from every circuit that has
ruled on the issue. See, e.g., Siler-Khodr v. Univ. of Tex.
Health Sci. Ctr. San Antonio, 261 F.3d 542, 550-51 (5th Cir. 2001)
(holding that a state was not entitled to Eleventh Amendment immunity for
claims brought under the EPA); Cherry v. Univ. of Wisc. Sys. Bd. of
Regents, 265 F.3d 541, 553 (7th Cir. 2001) (holding that the
Eleventh Amendment immunity did not bar plaintiff's gender-based
disparate pay claims against state employers brought under the EPA);
Kovacevich v. Kent State Univ., 224 F.3d 806, 820-21 (6th Cir.
2000) (holding that "Congress's abrogation of state immunity pursuant to
the EPA is . . . proper, and [the state defendants'] alleged violation
of the EPA is not shielded by the Eleventh Amendment"); Hundertmark
v. Fla. Dep't of Transp., 205 F.3d 1272, 1274 (11th Cir. 2000)
(affirming district court's ruling that "Congress had amended the Equal
Pay Act and abrogated the States' sovereign immunity pursuant
to [Section] 5 of the Fourteen Amendment and therefore the Eleventh
Amendment did not bar an action against the State in Federal Court");
O'Sullivan v. Minn., 191 F.3d 965, 967-68 (8th Cir. 1999)
(stating "[w]e join every court of appeals that has decided the issue and
hold Congress properly abrogated the states' sovereign immunity when it
enacted the EPA," and noting the contrast to lawsuits brought under the
other provisions of the Fair Labor Standard Act, where sovereign immunity
applies) (citations omitted). The undersigned will therefore reach the
merits of the Plaintiff's claims.
Claims brought under the disparate wage provisions of the EPA follow a
two-step burden-shifting paradigm. See, e.g., Stanziale v.
Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000); Ryan v. Gen. Mach.
Prods., 277 F. Supp.2d 585, 596 (E.D. Pa. 2003); Velez v. QVC,
Inc., 227 F. Supp.2d 384, 420 (E.D. Pa. 2002). The plaintiff must
first establish a prima facie case by demonstrating that
employees of the opposite sex were paid differently for performing "equal
work" that is, work of "substantially equal skill, effort and
responsibility, under similar working conditions." See
Stanziale, 200 F.3d at 107 (citation omitted). Once met, the
burden of persuasion then shifts to the employer to demonstrate the
applicability of one
of the four affirmative defenses available under the EPA: (1) a
bona fide seniority system; (2) a merit system; (3) a system which
measures earnings by quantity or quality of production; or (4) a
differential based on any factor other than sex. See id.
(citations omitted). In order to prevail at the summary judgment stage,
the employer must prove at least one affirmative defense "so clearly that
no rational jury could find to the contrary." See id. at 108. In
addition, the defendant employer must produce sufficient evidence from
which a reasonable factfinder could conclude that the proffered reasons
not only could explain, but did in fact motivate, the wage disparity.
See id. at 107-08 (citations omitted).
The facts underpinning the Plaintiff's EPA claims are virtually
identical to those forming the basis of her Title VII action.
Compare Pl.'s Br. at 5-8 (discussing Title VII claims)
with Pl.'s Br. at 4 (discussing EPA claims). Moreover, the
Plaintiff alleges that two of her male co-workers, Draper and Swansboro
who performed "equal work" at the DEP were moved to
paygrade 8 pursuant to the 2001 Reclassification, while she remains at
paygrade 7.*fn19 According
to the Plaintiff's submissions, the difference between these two
paygrades amounts to $4147.00 annually. See Chart
(attached as Ex. F4 to Pl.'s Ex.) at 2.
As a threshold matter, the undersigned recognizes that the standards in
establishing a prima facie under the EPA and Title VII are
generally read harmoniously. See Ryan, 277 F. Supp.2d
at 595 n.7. Accordingly, the undersigned has serious doubts, for the
reasons identified in its Title VII analysis, see discussion,
supra, at 20-22, as to whether a prima facie has been
established under the EPA namely, whether the Plaintiff has drawn
an appropriate comparison to Draper and Swansboro in light of the fact
that those employees have geologist's licenses. Nonetheless, as the
undersigned concludes that the Defendants have established that the pay
differential was based on a "factor other than sex," the court need not
dwell on this issue and will assume that a prima facie case has
The Defendants argue that the salaries of the Plaintiff and her
co-workers were the result of collective bargaining between the
Commonwealth of Pennsylvania and the Plaintiff's union. See
Defs.' Br. at 5-8; see also Reclassification Letter. As such,
disparity in wages between the Plaintiff and her co-workers can only be
attributed to the collective bargaining process, which constitutes a
"factor other than sex." The case law confirms this theory, and the
has failed to identify a single case to the contrary. See
id. Lang v. Kohl's Food Stores, Inc., 217 F.3d 919, 925
(7th Cir. 2000) (affirming district court's granting summary judgment on
plaintiff's EPA claims where "classifications and wages are the result of
collective bargaining . . .[l]abor agreements frequently apply to all
of an employer's sites, and these agreements are `factor[s] other than
sex'"); Lissak v. U.S., 49 Fed.Cl 281, 286 (Fed.Cl. 2001)
(granting summary judgment in favor of defendant on EPA claims, stating
"[d]efendant's system of differing pay and classification rules, which
resulted from a series of collective bargaining agreements, is a
bona-fide, gender-neutral, acceptable personnel policy that constitutes a
factor other than sex under the Act[,]" and that "[t]he pay disparity
between the plaintiffs and their male co-workers resulted from a
personnel policy in which gender played no part"); Cherrey v.
Thompson Steel Co., 805 F. Supp. 1257, (D. Md. 1992)(granting
defendant's motion for judgment on partial findings in regard to
plaintiff's EPA claims, stating "[s]ince the Equal Pay Act permits
employers to defend against charges base on a bona fide use of
factors other than sex, the collective bargaining agreement negotiated
with the union defeats this claim. . . .") (citation omitted, emphasis
in original).*fn20 The Defendants have met their burden of showing
that the wage disparity was based on a factor other than sex;
accordingly, the Defendants' Motion should be granted in the regard to
the Plaintiff's EPA claims.
3. The Plaintiff Has Failed to State a Claim Under Section 1983.
It is well established that the Eleventh Amendment prohibits a
plaintiff from bringing a Section 1983 action against a state or state
agency. See, e.g., Dennison v. Pa. Dept. of
Corrections, 268 F. Supp.2d 387, 396 (M.D. Pa. 2003) (holding the
Pennsylvania Department of Corrections was immune from Section 1983 suit,
stating "[the] Eleventh Amendment bars suit[s] in federal court against
states and their subordinate agencies.") (citation omitted);
Zelinski v. Pa. State Police, 282 F. Supp.2d 251, 264 (M.D.
Pa. 2003) (granting summary judgment in favor of Commonwealth of Pennsylvania
and state police on Section 1983 claims, stating "[Section] 1983 does not
override State's Eleventh Amendment immunity") (citation omitted);
Taylor v. County of Berks, 2003 WL 22078455, *1 (E.D. Pa. Sept.
2, 2003) ("It is clear that suits brought under [Section] 1983 against
[state] agencies are barred by the Eleventh Amendment") (citations
omitted). The DEP is a state agency, and therefore enjoys such immunity.
See Khodora Envtl., Inc. Ex Rel. Eagle Envtl., L.P. v.
Burch, 245 F. Supp.2d 695, 710 (W.D. Pa. 2002) (concluding that
plaintiff was barred under Eleventh Amendment from pursuing case against
the DEP) (citation omitted). Thus, the Plaintiff's Section 1983 claims,
as they relates to the DEP, must be dismissed.*fn21
The Eleventh Amendment also protects state officials acting in their
official capacities. See, e.g., Dennison,
268 F. Supp.2d at 396 (granting summary judgment in favor of officials in
Section 1983 action, stating "[o]fficial capacity suits are nothing more
than suits against an official's employing agency") (citation omitted);
see also, e.g., Gerber v. Sweeney, 2003 WL 1090187, *
3 (E.D. Pa. March 7, 2003) (holding individual official could not be sued
for damages under Section 1983, stating "it is well established that
state officials sued in their official capacities are not subject to
damages liability under [S]ection 1983") (citation omitted);*fn22
Accordingly, to the extent that the Section 1983 are brought against the
individual Defendants in their official capacity, they must also be
The Plaintiff contends, however, that the Eleventh
Amendment does not preclude Section 1983 claims against state
officials if the suit is brought against them in their individual, as
opposed to official, capacities. See Pl.'s Br. at 9. While
counsel has correctly stated the law, see Helfrich v.
Pa. Dep't of Military Affairs, 660 F.2d 88, 90 (3d Cir. 1981)
and Zelinski, 282 F. Supp.2d at 264 n.15, the
Plaintiff's Complaint is far from clear as to the capacity in which the
individual Defendants are being sued. See generally Compl.,
Caption & Count II. Nonetheless, based on the facts that the
Plaintiff has sought compensatory and punitive damages and that the
Defendants have raised the issue of qualified immunity and
resolving all doubts in favor of the Plaintiff the court
concludes that the Eleventh Amendment does not foreclose the Plaintiff's
individual-capacity claims against the individual Defendants.
See Gregory v. Chehi, 843 F.2d 111, 119-20 (3d Cir.
1988) (assuming that individuals defendants were sued in their individual
capacities where Plaintiff sought punitive as well as compensatory
damages against them). Floyd v. Dugal, 2003 WL 23101802, *4
(E.D. Pa. Dec. 16, 2003) (holding that Eleventh Amendment did not bar
Section 1983 action against individual defendants where, among other
things, the complaint sought compensatory and punitive damages and
defendants raised issue of qualified immunity).
Section 1983 imposes civil liability "upon any person who, under the
color of state law, deprives another person of any rights, priviliges, or
immunities secured by the Constitution or law of the United states."
See S.G. ex rel A.G. v. Sayreville Bd. of Educ,
333 F.3d 417, 420 (3d Cir. 2003) (citing 42 U.S.C. § 1983). Thus, to
bring a claim under Section 1983, a plaintiff must show: (1) "a violation
of a right secured by the Constitution and law of the United States"; and
(2) "that the defendant deprived him of these rights under the color of
[state law]." See Warner v. Montgomery Township, 2002
WL 162774, *17 (E.D. Pa. July 22, 2002) (citations to district courts in
Pennsylvania and United States Supreme Court omitted)
In order to impose personal liability upon a state official in his
individual capacity, a plaintiff is further required to show each
defendant's "personal involvement" in regard to the alleged deprivation.
See Douris v. County of Bucks, 2001 WL 767579, *6
(E.D. Pa. July 3, 2001). That is, a plaintiff must "allege, and be
prepared to prove, that [a given] defendant has been personally and
directly involved in the alleged wrongful conduct or alternatively that
the alleged wrongful conduct occurred with the defendants' actual
knowledge and acquiescence." See id. (citing, inter
v. Dellarciprete, 845 F.2d 1197, 1207 (3d Cir. 1988));
see also Jones v. Gardels, 2003 WL 22939477, *3 (D.
Del. Mar. 27, 2003) (a plaintiff must establish "evidence of personal
involvement, knowing acquiesence or participation of each Defendant")
(citing Pennsylvania v. Porter, 659 F.2d 306, 336 (3d Cir.
1981)). Moreover, as the Third Circuit Court has stated, the "official's
misconduct cannot be merely a failure to act . . .[s]uch officials
must have played an affirmative role in the deprivation of the
plaintiff's rights, i.e., there must be a causal link between
the action of the responsible officials named and the challenged
misconduct." See Porter, F.2d 306 at 336.
Here, the Plaintiff contends that "[t]he Defendants [including Erb,
Flaherty, and Janco]. . . acting under the color of state law,
subjected Plaintiff to continuous and ongoing, unlawful disparate
treatment, harassment, a hostile work environment, discrimination and
retaliation based on gender in violation of her civil rights."
See Pl.'s Br. at 9. "At very least, the individual defendants,
all of them supervisors and managers of the Plaintiff, should not escape
liability for their unlawful actions." See id. Plaintiff's
counsel goes no further in articulating the specific "affirmative role"
on the part of each of the individual
Defendants that might establish the necessary "causal link" to the
Plaintiff's alleged discriminatory treatment nor does the
Complaint itself, see Count II. In this context, a plaintiff
"cannot rely only on unsupported assertions, conclusory allegations, or
mere suspicions in order to survive summary judgment". See
Warner, 2002 WL 162774, *17 (citation omitted).*fn23
Accordingly, the undersigned finds that the Plaintiff has failed to meet
its burden in establishing a claim against the individual Defendants
under Section 1983; therefore, the claims should be dismissed.
Accord, e.g., Andrew P. v. Bucks County Intermediate
Unit, 2001 WL 1716993, * 5 (dismissing claims against the individual
defendants in their individual capacities where plaintiff failed to
assert "how the individual defendants were directly involved in the
alleged violations, or that the individual defendants had actual
knowledge of the violations, yet acquiesced in them"); Burke v.
Dark, 2001 WL 238518 (E.D. Pa. Mar. 8, 2001) (holding same);
Cropps v. Chester County Prison, 2001 WL 45762 (E.D. Pa. Jan.
19, 2001) (holding same).
Nonetheless, the Plaintiff should not be punished for the
deficiencies in her counsel's pleadings and briefing. Moreover, an
independent review of the record does cast some doubts as to the complete
lack of participation by certain individual Defendants
particularly with regard to Flaherty and Janco.*fn24 The undersigned
will therefore engage in a brief independent analysis of those potential
Borrowing from the Plaintiff's allegations raised in the context of her
Title VII and PHRA claims, as well as the Plaintiff's exhibits, the court
can identify the following relevant, personal conduct on the parts of
Flaherty and Janco.
As to Flaherty, it appears that: (1) he played some role in the 1999
Promotion Denial, as he was responsible for filing the management
initiated-reclassification documents necessary to promote the Plaintiff
to the next paygrade; and (2) he filed the necessary documents for
Swansboro and Draper pursuant to the 2001 Reclassification. See
Pl.'s Br. at 6-8; Flaherty Dep. at 41-43.
In regard to Janco, deposition testimony indicates that
he discussed matters relevant to the 1999 Promotion Denial with
Flaherty. See Flaherty Dep. at 41-42. In addition, according to
the Plaintiff's Declaration, Janco had made at least one inappropriate
remark directed at the Plaintiff that is, "telling [her] to `lick
my fingers' after he ate a cinnamon roll during a meeting." See
Visnikar Decl. ¶ 8.
Assuming these facts to be true, the court must determine whether they
are sufficient to state a claim against either Defendant under Section
1983. For the reasons that follow, the undersigned concludes they are
First, the Defendants have raised the defense of qualified immunity.
Qualified immunity shields government officials performing discretionary
functions from civil damages liability as long as "their conduct does not
violate clearly established statutory or constitutional rights that a
reasonable person would have
know." See Gruenke v. Seip, 225 F.3d 290, 299
(3d Cir. 2000) (citation omitted). To determine whether a plaintiff's
claim will proceed, the court engages in a two-part inquiry: (1) whether
"the plaintiff's allegations are sufficient to establish the violation of
a constitutional or statutory right at all"; and (2) whether "the right
that the defendant's conduct allegedly violates was a clearly established
one, about which a reasonable person would have known." See
S.G. ex rel A.G., 333 F.3d at 420 (citation omitted). If the
plaintiff's allegations fail to satisfy either inquiry, then the
defendant is entitled to summary judgment.
To the extent that the individual liability claims are based on the
1999 Promotion Denial and the 2001 Failure to Promote, the undersigned
concludes that Flaherty and Janco are protected by qualified immunity.
While perhaps short-sighted, and possibly unfair, the conduct alleged
simply does not amount to an actionable violation of a constitutional or
statutory right. See Douris, 2001 WL 767579 at *6
(noting "qualified immunity protects all but the plainly incompetent or
those who knowingly violate the law") (quoting Anderson v.
Creighton, 483 U.S. 635, 638 (1987)). As the court has already
addressed these claims in detail in the context of its Title VII and PHRA
analysis, and concluded that the same conduct did not constitute gender
discrimination and/or retaliation, the undersigned need not revisit them
here. See Stewart v. Rutgers, The State University,
120 F.3d 426, 432 (3d Cir. 1997) (acknowledging that same analytical
framework for finding discrimination applies under Section 1983 and Title
VII claims); see also McKay v. Delaware State
University, 2000 WL 1481018, *11 (D. Del. Sept. 29, 2000)
(holding same in context of failure to promote, retaliation, and
hostile work environment claims brought under Title VII and Section
What remains, therefore, is the claim against Janco based on his
inappropriate "cinnamon roll" remark. This statement, standing alone,
fails to amount to a violation of a federal right, see
discussion, supra, at 15 n.10. Even if the court were to
conclude otherwise, this claim would fail on the merits. To be actionable
under Section 1983, the conduct at issue must have occurred "under the
color of state law." See Nadig v. Nagel, 272 F. Supp.2d 509,
511-12 (E.D. Pa. 2003). As the Third Circuit Court has stated,
"purely private acts which
are not furthered by any actual or purported state authority are
not acts under the color of state law." See Barna v. City
of Perth Anboy, 42 F.3d 809, 816 (3d Cir. 1994). Further, "[i]t is
well settled that an otherwise private tort is not committed under color
of state simply because the tortfeasor is an employee of the state."
See Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d
Cir. 1995). The Plaintiff here has not alleged a nexus between the remark
and the execution of Janco's official duties suggesting an abuse
of state power that would render the comment actionable under
Section 1983. See Bonenberger v. Plymouth Township,
132 F.3d 20, 23 (3d Cir. 1997). Thus, the claim must be dismissed.
In sum, the undersigned concludes that the Plaintiff has failed to
state a claims against the Defendants under Section 1983; thus the
District Court should grant summary judgment in favor of the Defendants
in this regard.
For the reasons stated above, it is recommended that the District Court
grant the Defendants' Motion in its entirety.
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B)
and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates,
objections to this Report and Recommendation are due by February 12,
2004. Response to objections are due by February 23, 2004.