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Kost v. Dep't of Public Welfare Commonwealth of PA

February 20, 2009

PETER J. KOST, PLAINTIFF,
v.
DEPARTMENT OF PUBLIC WELFARE COMMONWEALTH OF PA, ESTELLE B. RICHMAN, SECRETARY, IN HER OFFICIAL CAPACITY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Jones, J.

MEMORANDUM AND ORDER

This is a civil rights action based upon the alleged wrongful treatment and termination of the employment of Plaintiff Peter J. Kost ("Kost") from the Commonwealth of Pennsylvania Department of Public Welfare ("DPW") based upon gender and race discrimination. Kost has filed a Second Amended Complaint (Docket No. 9) (the "Complaint") which names as Defendants DPW Secretary Estelle B. Richman in her official capacity and DPW employees Denise White and Sandy Brooks in their individual capacities. The Second Amended Complaint contains the following claims: (1) a Title VII claim against Defendant Richman (Count I); (2) multiple 42 U.S.C. § 1983 claims against each of the Defendants (Count II); and (3) a Pennsylvania Human Relations Acts ("PHRA") claim against Defendant Richman (Count III).

Defendant Richman moves to dismiss Kost's § 1983 and PHRA claims for lack of jurisdiction pursuant to Fed. R. Civ. Proc. 12(b)(1). Defendants White and Brooks move to dismiss Kost's procedural due process and conspiracy-based § 1983 claims on the grounds that they fail to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6). For the reasons that follow, the motion will be granted with leave to amend in part.

I. Facts

For purposes of this motion, the facts set forth in the Second Amended Complaint must be taken as true.

Kost, a white male who is a veteran, was hired on April 18, 2005, to work as an Income Maintenance Caseworker for DPW. Complaint ¶ 19. At the beginning of his tenure with the Defendant, Kost was directly supervised by a white female, Donna McMahon. Id. at ¶ 23. At his three month review, Defendant found that Kost had a good working knowledge of the job because of his prior experience, achieved perfect scores in his training quizzes, had a firm command of cash policy, did well on his medical assessment, completed food stamp reviews without difficulty, and helped other trainees. Id. at ¶ 24. Defendant Sandy Brooks, an African-American female, became Kost's direct supervisor on September 4, 2005 and remained so until his termination in February of 2006. Id. at ¶ 26. In the months after Brooks became Kost's supervisor, Brooks began to complain about Kost's alleged disruptive behavior. Id. at ¶ 27. In Kost's December 2006 review, Brooks dropped Kost's rating to "unsatisfactory," and stated that Kost's "interpersonal relationships [we]re counter-productive to work unit or team functions and often ignore[d] EEO/diversity program requirements." Id. at ¶ 29.

Defendants:

(a) completed Kost's performance evaluation and placed Plaintiff on probation for untrue and invalid reasons, when female and/or non-white co-workers who were performing at a lower level than he were not placed on probation or poorly evaluated;

(b) made supervisory statements that supervisors did not want to hire veterans because they are all white males;

( c) refused to accept and/or act upon Kost's complaints of harassment;

(d) otherwise treated Kost in a derogatory manner, while not treating non-male/ non-Caucasian employees in such a way;

(e) denied explanation for disciplinary actions being taken against Kost and failed to allow Kost the opportunity to rebut the statements made about him and his work performance;

(f) forced all of the male Caucasians in Kost's incoming class to quit, transfer or be terminated, and/or threatened termination if they did not either quit or transfer;

(g) held Kost to a higher standard than that for non-white/non-male co-workers;

(h) required Kost to perform certain tasks which were not ...


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