The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court is defendants' motion for summary judgment in this sex discrimination in employment case. Having been fully briefed and argued, the matter is ripe for disposition.
Marlene M. Luzier began working for the Pennsylvania Department of Labor and Industry ("Department") in 1989. (Defendant's Statement of Material Facts as to Which There is No Genuine Issue to Be Tried (Doc. 49) at ¶ 1).*fn1 She started her career as an Intermittent Intake Interviewer. (Id.). The Department promoted her to Employment Specialist II in 1995. (Id.). Plaintiff again was promoted in January 2001, this time following an interview with Billy Lanham and Butch Lindke. (Id. at ¶ 2). After this promotion, plaintiff became an Employment Security Specialist II in the Department's Bureau of Workforce Development Special Programs Division. (Id.). Lanham has worked for the Department for sixteen years and currently serves as the Division Chief of the Special Programs Division. (Id. at ¶ 3). He supervised both plaintiff and Lindke in that position. (Id.). Lindke was plaintiff's supervisor in the Special Programs Division. (Id. at 4). Plaintiff points to several incidents of alleged discriminatory behavior. When Linda Trimpey was appointed to a director position in the Department in 2001, for instance, plaintiff overheard Defendant Lanham say that Trimpey must have had political pull because "we need a man in there with some balls, we don't need a female." (Id. at ¶ 5). Plaintiff contends that Lanham harassed her in 2002, when he assigned her work during a meeting that had originally been assigned to Lindke and a co-worker. (Id. at ¶ 6). Defendant Lanham apparently assigned her the work because she had completed her assignment correctly and Lindke and the male co-worker had not. (Id.). Lanham likewise assigned plaintiff the task of scoring grant proposals because he "wanted them done right."*fn2 (Id. at ¶ 7). He also allowed a male worker to move his filing cabinet out of his cubicle but refused plaintiff the same privilege. (Id. at ¶ 9). Later, Lanham criticized plaintiff about a letter he thought she had written and demanded she make changes to it. (Id. at ¶ 13). When Lindke informed Lanham that he had actually written the letter, Lanham's criticism stopped. (Id.).
Lanham also made comments that plaintiff and others found offensive towards women. In summer 2003, plaintiff and a co-worker had a conversation about a co-worker who had become pregnant. (Id. at ¶ 10). When Laham heard of this worker's condition, he commented that women should be "'home, pregnant and barefoot.'" (Id.). Similarly, some time before Veteran's Day 2003, Luzier overheard Lanham and Butch Lindke discussing a celebration planned by their division within the Department. (Id. at ¶ 14). Luzier questioned Lanham about whether she had any say in the planned celebration. (Id.). Lanham denied that her input was necessary since plaintiff was "just a woman" and not a veteran. (Id. at ¶ 14; Plaintiff's Statement at ¶ 14). The parties dispute whether plaintiff ever complained to her supervisors about these 2003 comments. (Defendants' Statement at ¶ 11; Plaintiff's Statement at ¶ 11). In October 2004, Lanham told plaintiff that he had a male dog, since he had one woman at home (his wife), and that was enough. (Defendants' at ¶ 15).
Other evidence indicates that Lanham had an unfavorable attitude towards women in the workplace. Plaintiff testified that one male co-worker, for example, overheard Lanham criticize her. (Plaintiff's Statement at ¶ 60). This co-worker informed plaintiff that laws existed to protect her from such harassment. (Id.).
Lanham supervised Elwin Lindke for six years. (Id. at ¶ 54). Lindke provided an affidavit in which he contended that Lanham "had a 'real chip on his shoulder' about women in the workplace." (Id. at ¶ 55). Lindke frequently heard Lanham make comments like women should "be at home, barefoot and pregnant." (Id. at ¶ 55). Lanham also told Lindke that a women made Sergeant Major in the Army because of affirmative action, not because of her skills. (Id. at ¶ 63). Lindke was unaware of Defendant Lanham ever promoting any women in his department to management positions. (Id. at ¶ 55; Affidavit of Elwin Lindke, Exh. J to Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment (Doc. 52) (hereinafter "Lindke Affidavit") at ¶ 6). Over the six years that Lanham supervised him, Lindke reported that he had perhaps a dozen conversations in which he expressed concern over Lanham's "discriminatory treatment of women." (Plaintiff's Statement at ¶ 56). At times, Lanham responded to such statements by admitting that he had crossed a line; at other times, he told Lindke to "mind [his] own business." (Id.; Lindke Affidavit at ¶ 10). Lanham likewise testified that he had never recommended a woman to a supervisory position, though he did recommend that a former secretary be considered for positions of more responsibility. (Plaintiff's Statement at ¶ 58).
On December 31, 2004, Lindke retired from his position as an Employment Security Specialist III (hereinafter "ESS3"). (Id. at ¶ 16). Plaintiff was one of six people who applied to replace him. (Id. at ¶ 17). Defendant Lanham, James Rabenold, the Department's deputy director, and Gina Frye, an administrative officer who handled all personnel actions in the Bureau of Workforce Development, interviewed plaintiff on March 3, 2005. (Id. at ¶¶ 18, 23-24). Defendant John Vogel was in the room but not a member of the panel. (Id.). At that time, Vogel was Director of the Bureau of Workplace Development and Partnership of the Department. (Id. at ¶ 19). He oversaw approximately 600 employees. (Id.). The parties disagree if Vogel was present at any of the other interviews. (Id. at ¶ 20). Vogel and Frye contend that he attended all but one of the interviews. (Id.). Rabenold testified at his deposition that he could not remember Vogel's presence at any other interview, but specifically recalled that he attended plaintiff's. (Plaintiff's Statement at ¶ 20). In any case, both sides agree that Vogel testified that he had little involvement in the panel's discussion of the candidates. (Id. at ¶ 21; Defendants' Statement at ¶ 21). During the interview, Vogel made various noises and shuffled papers while plaintiff tried to speak. (Defendants' Statement at ¶ 22). Plaintiff became so flustered during the interview that she asked for a halt to the proceedings. (Plaintiff's Statement at ¶ 22).
Defendants Lanham and Vogel testified that plaintiff was critical about former supervisors during the interview. (Defendants' Statement at ¶ 27). They also testified that plaintiff did not answer some of the questions she was asked about her unit. (Id. at ¶ 28). The interview rating sheets included in the record do not reflect that plaintiff failed to answer questions, though interviewers did note that some of her answers were rather brief. (See Ex. G to Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment (Doc. 52)). Rabenold testified that an interviewee's ratings would be lower if she failed to answer questions. (Defendants' Statement at ¶ 29).
After the interview, James Rabenold rated plaintiff as "somewhat deficient" and J.P., the candidate who got the job, as "outstanding." (Id. at ¶ 30). Gina Frye likewise found plaintiff "somewhat deficient" and J.P "outstanding." (Id. at ¶ 31). Defendants cite as one factor for J.P.'s superior performance the fact that he brought handouts with information about his work and plans to the interview, while plaintiff provided interviewers with no such material. (Id. at ¶ 32). Rabenold and Frye discussed these handouts as they evaluated the candidates. (Plaintiff's Statement at ¶ 74). They interviewers testified that they were "impressed" with this material. (Defendants' Statement at ¶ 33). These documents were, however, co-authored with plaintiff and Lindke. (Plaintiff's Statement at ¶ 72). Lanham was aware of this fact, but did not inform the other members of the panel because he feared that "'that may have prejudiced their opinion.'" (Id. at ¶¶ 72, 76).
The parties agree that J.P. was qualified for the position. (Id. at ¶ 34). The panel ultimately recommended J.P. for the position, choosing him over plaintiff. (Id. at ¶ 35). Denham noted that while plaintiff had not given the best interview, she represented the department's second choice. (Id. at ¶ 36). Lanham found J.P. "slightly more capable" than plaintiff. (Id. at ¶ 37; plaintiff's statement at ¶ 37). Luzier contends that the position had been promised to J.P. before the interview process even began. (Id. at ¶ 38). After hearing rumors that J.P. would receive the job, plaintiff confronted both Lanham and J.P. about the situation. (Id. at ¶ 39). Lanham did not answer directly plaintiff's question about the pre-selection of J.P., but instead told her that all the applicants would have to go through the interview process. (Id.; Plaintiff's Statement at ¶ 39).
After defendants denied plaintiff the promotion she began crying frequently, stopped trusting people, felt nervous and began to experience horrible dreams. (Defendants' Statement at ¶ 44). On September 23, 2005, plaintiff went to see a physician, Dr. Mueller. (Id. at ¶ 47). Dr. Mueller diagnosed plaintiff with depression, and plaintiff was unable to return to work. (Id.). Plaintiff had not visited a doctor in the ten years previous to her visit with Dr. Mueller. (Id. at ¶ 48).
Defendants claim that the interview process was the primary decision-making tool in the hiring process at the Department. (Defendants' Statement at ¶ 26). Plaintiff admits that defendants claim that interviews were the determining factor in the hiring process, but disputes claims that defendants relied on these interviews in making the decision about the position for which she applied. (Id. at ¶ 26, Plaintiff's Statement at ¶ 26). Plaintiff contends that co-workers were convinced that J.P. would receive the job even before the interviews began, and called her to inquire about how she would enjoy working for him. (Id.). She also points to the affidavit of Audrey Bergstresser, who worked in the cubicle next to J.P.'s. (Id.). Bergstresser reported that she had overheard J.P. discussing a possible move to another state- government department. (Id.). He had been offered a position in the department, but had to decide whether to take the position or accept a promotion to Lindke's position which he had been offered. (Id.). This conversation allegedly occurred before the interviews took place. (Id.).
Plaintiff contends that she was qualified for the position. (Defendants' Statement at ¶ 40). She had worked in the class immediately below the position for which she applied for at least two years, and her responsibilities in that position had largely duplicated those of the ESS3 since January 2005. (Id.). Still, plaintiff had never been classified as an ESS3 and had never received pay commensurate with that grade. (Id. at ¶ 41). Plaintiff blames Defendant Lanham's discriminatory attitude towards women for her failure to receive a promotion to ESS3; he had never promoted a woman to a position directly under him. (Id. at ¶ 42). At the time plaintiff alleges Lanham's discrimination occurred, he supervised eight female employees: one clerk typist 3, two clerk typists 2, and three Employment Security Specialists 2, the position held by the plaintiff. (Id. at ¶ 43).*fn3 Lanham had two opportunities to make hires for supervisory positions. (Id.). No women applied for the first opportunity, and J.P. received the second. (Id.). Lanham hired none of the other supervisors who worked under him. (Id.).
Plaintiff made another verbal complaint to the Department's Equal Opportunity Office in September 2005. (Id. at ¶ 45). She protested the fact that Lanham had assigned her to perform audits. (Id.). She thought the process would take two months but lasted over a year. (Id.). The day after she filed her complaint, Jim Paisley told plaintiff that she would not have to complete any more audits. (Id. at ¶ 46).
Plaintiff filed a pro se complaint with the Pennsylvania Human Rights Commission (PHRC) on September 14, 2005. (Defendants' Statement at ¶ 49; Plaintiff's statement at ¶ 49). Plaintiff's last day at work for the Department was September 23, 2005. (Plaintiff's Statement at ¶ 49). On December 9, 2005, plaintiff filed an amended complaint with the PHRC. (Defendants' Statement at ¶ 50). That complaint raised four counts: sex discrimination through failure to promote (Court I); retaliation discrimination by failure to promote (Count II); retaliation discrimination by harassment (Count III); and disability discrimination by harassment (Count IV). (Id.). Counts III and IV of the complaint alleged that the discrimination that plaintiff faced was related to a "mental disorder" from which the plaintiff suffered. (Id. at ¶ 51). The amended complaint also alleges that plaintiff faced a hostile work environment as retaliation for complaining to the Department's Equal Employment Opportunity office and for plaintiff's civil service appeal. (Id. at ¶ 52). Plaintiff used annual leave, sick leave, and family medical leave until she retired from the Department on July 11, 2006. (Id. at ¶ 53). According to the plaintiff, she retired due to harassment by John Vogel and Billy Lanham. (Id.).
The plaintiff also filed her amended complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC examined this complaint and issued plaintiff a "right to sue" letter on September 26, 2006. In the meantime, plaintiff filed a pro se complaint in this court on August 16, 2006 (Doc. 1). Judge Christopher C. Connor originally heard the case. After several months of preliminary precedings and the entry of an appearance of counsel for the plaintiffs, Judge Connor on May 3, 2007 recused himself from the matter (See Doc. 27). The case was transferred to the present judge. We granted plaintiff's motion to file an amended complaint on July 3, 2007 (Doc. 35).
Plaintiff's amended complaint raises causes of action*fn4 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1983 and the Pennsylvania Human Relations Act (PHRA), 43 PENN. STAT. ANN. §§ 951-963.
Plaintiff's complaint sets forth claims for violation of plaintiff's right to equal protection of the laws under the Fourteenth Amendment and alleges violations of the other statutes as well. The complaint seeks both compensatory and punitive damages.
The parties then conducted discovery. At the close of discovery, defendants filed the instant motion. The parties briefed the issues and the court held oral ...