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United States District Court, W.D. Pennsylvania

January 27, 2004.


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



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 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).


  1. The Plaintiff Has Failed to State Claims Under Title VII and the PHRA.

  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 to the Page 14 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) Page 15 (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) (citations omitted).

  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." Page 16 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. See id.

  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 Defendants] Page 17 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 Page 18 claims can be dismissed.").*fn10 Page 19


  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 Page 21


  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. Page 23

  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 omitted). Page 24

  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 Page 25 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. Pa. 2003).

  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 Page 26 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 Page 27 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 case.

  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 Page 28 pretext.

  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 Page 29 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 Page 30 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 Page 31 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 Page 32 favorably, or that the employer has discriminated against other members of his protected class or other protected categories of persons." See id.

  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 for Page 33 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." See id.

  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 criterion.") Page 34 (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 Page 35 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 majority.

  The Plaintiff's other argument relates to the events Page 36 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 Page 37 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 state.*fn17 Page 38

  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 Page 39 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 Page 40 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 licensing Page 41 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 the Defendants.*fn18

  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, Page 42 843 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 Page 43 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 Page 44 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 Page 45 to the Plaintiff's submissions, the difference between these two paygrades amounts to $4147.00 annually. See Chart Page 46 (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 been established.

  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 Plaintiff Page 47 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 Page 48 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. Page 49

  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 Page 50

  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 dismissed.

  The Plaintiff contends, however, that the Eleventh Page 51 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). Page 52

  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 alia, Rode Page 53 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 Page 54

  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 Page 55 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 claims.

  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 Page 56 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 not.

  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 Page 57 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) Page 58 (holding same in context of failure to promote, retaliation, and hostile work environment claims brought under Title VII and Section 1983).*fn25

   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 Page 59 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.

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