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.
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
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 ...