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Walters v. Washington County

March 23, 2009

KAREN A. WALTERS, PLAINTIFF,
v.
WASHINGTON COUNTY; WASHINGTON COUNTY COURT OF COMMON PLEAS; HONORABLE DEBBIE O'DELL SENECA; INDIVIDUALLY AND IN HER CAPACITY AS PRESIDENT JUDGE OF THE WASHINGTON COUNTY COURT OF COMMON PLEAS; WASHINGTON COUNTY DOMESTIC RELATIONS OFFICE; CATHI KRESH, INDIVIDUALLY AND IN HER CAPACITY AS DIRECTOR OF WASHINGTON COUNTY DOMESTIC RELATIONS; JEANIE RYDZAK, INDIVIDUALLY AND IN HER CAPACITY AS CLERICAL SUPERVISOR, IN WASHINGTON COUNTY DOMESTIC RELATIONS OFFICE; AND TOM JESS INDIVIDUALLY AND IN HIS CAPACITY AS DEPUTY COURT ADMINISTRATOR OF WASHINGTON COUNTY, DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

Pending before this court are the motion for summary judgment (Docket No. 57) filed by defendants Washington County ("County"), Cathi Kresh ("Kresh"), Jeanie Rydzak ("Rydzak"), and Tom Jess ("Jess") and the motion for summary judgment (Docket No. 61) filed by defendants the Honorable Debbie O'Dell Seneca ("Judge O'Dell Seneca"), Washington County Court of Common Pleas ("Court of Common Pleas") and Washington County Domestic Relations Office (individually "Domestic Relations Office" and together with Judge O'Dell Seneca and the Court of Common Pleas, "Judicial Defendants"). Plaintiff Karen A. Walters ("Walters" or "plaintiff") filed this civil action asserting claims 1) for age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. §§ 951 et seq. ("PHRA"), 2) for retaliatory suspension/discharge under Pennsylvania law, and 3) for deprivation of due process without pre- or post-deprivation hearing under 42 U.S.C. § 1983. Plaintiff also filed a claim for intentional infliction of emotional distress which was dismissed on May 24, 2007, along with the individual claims against Kresh, Rydzak, and Jess under the ADEA. (Docket No. 37.) A claim was also made against SEIU 88, a union, for breach of a duty of fair representation or misrepresentation. Plaintiff, however, stipulated to the dismissal of SEIU 88 as a defendant from this action on April 4, 2008. (Docket Nos. 51, 53, 54.) Plaintiff initially filed these claims with the Equal Employment Opportunity Commission ("EEOC") and cross-filed with the Pennsylvania Human Rights Commission ("PHRC"). Both agencies dismissed the claims and issued right to sue letters.

After reviewing the record, considering the briefs in support of and in opposition to the motions, viewing all disputed facts in plaintiff's favor and drawing all reasonable inferences in plaintiff's favor, the court concludes that no reasonable finder of fact could render a verdict for plaintiff on her federal claims. With respect to the claims asserted by plaintiff under the ADEA, the court concludes that plaintiff failed to establish that defendants' legitimate nondiscriminatory reasons were pretextual. With respect to the claims asserted by plaintiff under § 1983, the court concludes that plaintiff failed to establish that she had a property interest in her employment. Finally, the court declines to exercise supplemental jurisdiction over plaintiff's state law claims. Accordingly, the court will grant summary judgment in favor of defendants with respect to plaintiff's federal claims and will dismiss the state claims without prejudice.

Factual Background

In August 1992, plaintiff was hired by the domestic relations section of the Court of Common Pleas. (Deposition of Walters, Sept. 21, 2007 ("Walters Dep."), Docket No. 59, Ex. A at 36.) Plaintiff was employed in the section from August 19, 1992 through October 18, 2004. (Affidavit of Walters, Sept. 25, 2008 ("Walters Aff."), Docket No. 68, Ex. J ¶ 1.) Plaintiff initially started as a stenographer, but eventually became a clerk-typist II in the domestic relations office. (Walters Dep. at 38.) Her duties included dictating child support hearings, scheduling genetic testing, typing up and mailing out court orders, answering phones, waiting on customers, and collecting child support payments from customers. (Walters Dep. at 39-41; Deposition of Kresh, Dec. 7, 2007 ("Kresh Dep."), Docket No. 59, Ex. B at 40-41.)

Although plaintiff was hired by the Court of Common Pleas, she specifically recalled County representatives having significant input in her hiring process. (Walters Aff. ¶ 2.) Plaintiff averred that she learned about the opportunity through the County human resources department and filled out a County application. (Id.; Washington County Application of Employment, Docket No. 68, Ex. K; Authorization for Criminal Background Check, Docket No. 68, Ex. L.) She also claimed that she was interviewed by Janice Urban ("Urban"), the assistant director of the County's human resources office, and Urban administered her a typing test and personally informed her that she was hired. (Walters Aff. ¶ 2.) Washington County employment/training documentation exists for plaintiff dating from 1992. (County of Washington Employment/Training Documentation, Docket No. 68, Ex. N.)

Plaintiff signed an acknowledgment that she had been informed about the County phone policy, agreed to abide by the County weapons and contraband policy, acknowledged in writing that she received a copy of the County's sexual harassment policy, and acknowledged in writing that she received a copy of the County's equal opportunity policy and discrimination complaint process policy. (Washington County Phone Policy Acknowledgment, Docket No. 68, Ex. P; Washington County and Contraband Acknowledgment, Docket No. 68, Ex. Q; Sexual Harassment Policy Acknowledgment, Docket No. 68, Ex. R; Equal Employment Opportunity Policy and Discrimination Complaint Policy Acknowledgment, Docket No. 68, Ex. S.)*fn1 Plaintiff believed that she was covered by the County's sexual harassment policy and other personnel policies, and that her wage rates and benefits were governed by the collective bargaining agreement to which the County was a party. (Walters Aff. at ¶ 3.) Plaintiff alleged that her identification card was supplied by the County. (Walters Aff. ¶ 6.) Kresh testified that she had referred plaintiff, as well as other County employees, to the County's employee assistance program. (Kresh Dep. at 36.) Plaintiff was paid by the County. (Wage Tax Withholding Questionnaire, Docket No. 68, Ex. M.)

Court of Common Pleas' employees could bring a union representative to meetings regarding discipline or counseling. (Kresh Dep. at 20.) Domestic relations employees were afforded the right to union representation when being disciplined or otherwise accused of wrongdoing, and the union regularly filed grievances on behalf of "court" employees under the supervision of deputy court administrator Jess. (Deposition of Jess ("Jess Dep."), Docket No. 59, Ex. C at 46-47, 73.) Jess testified that prior to his tenure as deputy court administrator, the Court of Common Pleas participated in the grievance process. (Jess Dep. at 78.)

Plaintiff's immediate supervisor in domestic relations was Rydzak. (Walters Dep. at 43.) Above Rydzak were Kresh, director of domestic relations, Jess, deputy court administrator, and Christine Weller ("Weller"), court administrator. (Walters Dep. at 43-46; Kresh Dep. at 19.) Rydzak and Kresh controlled plaintiff's day-to-day work activities. (Walters Dep. at 45-46.) Rydzak set plaintiff's hours and set the guidelines, policies, and practices of plaintiff's employment. (Walters Dep. at 48-49.) If plaintiff wished to take a vacation or personal day, she had to make the request to Rydzak or Kresh. (Walters Dep. at 45-46.) Plaintiff's superiors in the domestic relations section were responsible for disciplining domestic relations employees. (Walters Dep. at 47.)

During her employment in the domestic relations section, plaintiff was disciplined multiple times by her superiors for alleged misbehavior. In November 1993, plaintiff was issued a verbal warning by the domestic relations director Sue Accetta ("Accetta") for alleged insubordination and failing to complete timely work assignments. (11-30-93 Verbal Warning, Docket No. 59, Ex. E, Walters Dep. at 52-55.) In December 1995, Accetta suspended plaintiff for two days without pay for unprofessional conduct in a meeting. (12-5-95 Suspension Letter, Docket No. 59, Ex. F; Walters Dep. at 55-57.) In August 1999, domestic relations deputy director Martha Ward suspended plaintiff for five days without pay and put her on six months probation for modifying a signed court order without permission. (8-10-99 Suspension Letter, Docket No. 59, Ex. G.) In that instance, Judge O'Dell Seneca had signed a court order that plaintiff believed was incorrect. (Walters Dep. at 58-61.)

When asked whether she was suspended in 1995 for unprofessional behavior, plaintiff remembered being suspended. She did not remember the reason for the suspension, stating "I don't know what it was. Something they said that I probably did. I always got picked on. Constantly. It was like verbal abuse." (Id. at 55-56.)

In 2004, soon after Kresh took over the office, she had a meeting with plaintiff to discuss her attendance and use of the telephone for personal calls. (Kresh Dep. at 35-36.) In February 2004, Kresh, Rydzak, and Jess had another meeting with plaintiff because, allegedly, plaintiff's work habits and attitude toward her superiors had not improved. (Kresh Dep. at 37-38; Memorandum of Jess regarding plaintiff, Docket No. 59, Ex. H; Memorandum of Rydzak, Docket No. 59, Ex. I.) Plaintiff denied that she had been rude. (Memorandum of Jess regarding plaintiff, Docket No. 59, Ex. H.) Following this meeting, Kresh gave plaintiff a letter of counseling that instructed plaintiff to focus more on her job duties and also show more respect to her superiors. (4-23-04 Letter of Counseling, Docket No. 59, Ex. J; Kresh Dep. at 37-40; Walters Dep. at 70-74.)

In April 2004, plaintiff was given additional training because she was unable to consistently mail out timely and correct court orders. (4-29-24 Acknowledgment of Training, Docket No. 59, Ex. K; Kresh Dep. at 39-40; Walters Dep. at 74-75.) In July 2004, Kresh gave plaintiff another reprimand because plaintiff refused to accept a child support payment during the lunch hour even though domestic relations policy expressly provided that payments should be accepted and processed during that period. (7-8-04 Written Reprimand, Docket No. 59, Ex. L; Walters Dep. at 76-77.) Kresh reprimanded plaintiff for having food delivered to the front desk even though there was a domestic relations office policy against that practice. (7-8-04 Written Reprimand, Docket No. 59, Ex. L.) Plaintiff denied that these incidents occurred as they were reported. (Walters Dep. at 77.) In September 2004, Jess suspended plaintiff for three days without pay for insubordination and failure to perform sufficiently her job duties. (9-17-04 Suspension Letter, Docket No. 59, Ex. M; Walters Dep. at 78.) Plaintiff had mailed out a court order to the wrong person and this was brought to her attention. She responded, "What's the big deal? You make mistakes, I make mistakes." (Jess Dep. at 115-16, 121-22; Deposition of Rydzak ("Rydzak Dep."), Docket No. 59, Ex. N, pp. 14-15.) Plaintiff did not agree with her suspension and refused to sign the acknowledging receipt on her suspension letter. (9-17-04 Suspension Letter, Docket No. 59, Ex. M; Walters Dep. at 78-79.)

Rydzak testified that she routinely counseled and disciplined plaintiff on a more informal basis. (Rydzak Dep. at 8-9.) Rydzak testified that she did not always write plaintiff up for her inadequate job performance. (Id.) Instead, she would take plaintiff aside and talk to her about focusing more on her job. (Id.) Plaintiff denies that prior to her termination she was routinely counseled or informally disciplined by Rydzak. (Walters Aff. ¶ 14.)

In September 2004, Lisa Juskowich ("Juskowich") was hired by the President Judge David Gilmore to work as clerk-typist I in the domestic relations office. (Deposition of Lisa Juskowich ("Juskowich Dep."), Docket No. 59, Ex. O at 6, 10, 22-26.) Shortly after she began working as a clerk typist I, Juskowich claimed that she had a conversation at the front desk with plaintiff. (Id. at 25-26.) During the conversation, plaintiff allegedly talked about her doctor's appointments and made a comment to Juskowich about how medical instruments used during a sonogram can be sexually stimulating. (Id.) Plaintiff testified that:

[Juskowich] said to me, and I remember this distinctly. She said she had female problems. I said I had -- she had to get a sonogram done. I said sometimes a sonogram you can't see everything, you have to have an internal sonogram. Do not quote me on this, but I said something along the lines of oh, you would like it or I liked it or something like that, and that was it. (Walters Dep. at 94.)

In early October 2004, Juskowich was an enforcement officer in the domestic relations section. (Juskowich Dep. at 23-24.) On October 13, 2004, Juskowich was training with Michelle Menozzi ("Menozzi") and was mailing out letters for Menozzi. (Id. at 55-56.) In the late afternoon Juskowich ran out of envelopes and Menozzi told her that more envelopes were stored in the cabinet near the front of the office. (Id.) Juskowich walked toward the front of the office, past plaintiff's cubicle, but did not see the cabinet. (Id. at 55-58.) Juskowich asked plaintiff where the envelopes were located. (Id. at 58-59.) According to Juskowich, plaintiff told her where the envelopes were and then began talking about how cold it was in the office. (Id.) Plaintiff told Juskowich that her hands were cold and pulled Juskowich's shirt out of her pants and placed both her hands directly on Juskowich's stomach. (Id.) Juskowich claims that she jumped back and gasped Karen's name. (Id.) Jada Finley, another domestic relations worker whose cubicle was nearby, overheard Juskowich gasp, "Karen," in a shocked manner. (Deposition of Jada Finley, December 7, 2007 ("Finley Dep."), Docket No. 59, Ex. R at 16-17.)

Juskowich testified that she felt embarrassed and violated and immediately told her coworker, Krista Humphries ("Humphries"), about the incident. (Juskowich Dep. at 58-59, 73.) Humphries reported the incident to Menozzi, and Juskowich reported it to Kresh. (Id. at 58.) Kresh took Juskowich into deputy court administrator Jess' office and they relayed the incident to him. (Id. at 58-59.) In response to the alleged incident, deputy court administrator Jess testified that he asked for assistance from the County human resources office ("HR") in conducting an investigation because HR had expertise in handling sexual harassment complaints. (Jess Dep. at 20-21; Kresh Dep. at 50-51, 61.) Kresh was instructed to participate in the investigation on behalf of the court. (Jess Dep. at 67-68; Kresh Dep. at 58.)

Jess called HR and an equal employment opportunity ("EEO") specialist, Aggie Scarton ("Scarton"), came to Jess' office and gave Juskowich a complaint form to fill out. (Kresh Dep. at 50-51; Discrimination/Harassment Complaint by Juskowich, Docket No. 59, Ex. S.) After Juskowich relayed the incident to Scarton, Juskowich took a break, and Kresh and Scarton discussed the matter in private. (Juskowich Dep. at 58-59; Kresh Dep. at 51.) When Juskowich returned from her break and was signing in, she claimed that plaintiff, whose cubicle was also near the sign-in area, told her that, "my hands were cold weren't they?" (Juskowich Dep. at 59.) Juskowich testified that this comment made her even more upset, and she relayed the comment to Kresh and Jess. They sent her home early. (Id. at 59; Kresh Dep. at 51.)

A few days after the incident, Ryzdak spoke to Jess about plaintiff. Ryzdak remembers saying "I can't believe that she would do that or anybody else, you know, like any other employee, but I remember saying that, because my issues with [plaintiff] were always work-related, and I couldn't believe that she would turn around and do something like that." (Ryzdak Dep. at 27.) Ryzdak, however, was not involved in any further proceedings involving plaintiff and was not called into HR. (Id. at 26.)

On October 18, 2004, plaintiff was called into a meeting with domestic relations director Kresh, Scarton, and County HR assistant director Urban at which plaintiff was notified about the allegations made by Juskowich and questioned about the incident. Plaintiff's union representative Pete Lorenzo attended this meeting as well. (11-24-04 HR Report, Docket No. 59, Ex. Q (the "HR Report"); Kresh Dep. at 46-49.) At this point, plaintiff was not yet aware of the charges made against her by Juskowich. (Kresh Dep. at 53-54.) Once informed of the allegation made by Juskowich, plaintiff was given the opportunity to explain her side of the story. (Kresh Dep. at 54.) At the October 18, 2004 meeting, plaintiff stated that she had no recollection of Juskowich asking her on October 13, 2004, where the envelopes were located. (Walters Dep. at 93.) At the meeting, plaintiff could not recall whether she told Juskowich her hands were cold. (Id. at 94.) While plaintiff later believed that she probably told Juskowich that her hands were cold, she denied pulling out Juskowich's shirt or placing her hands on Juskowich's stomach. (Pl.'s Answer to the County's Interrogs., Docket No. 59, Ex. U, No. 19.)

At no time during the October 18, 2004 meeting did plaintiff claim that she was being treated unfairly because of her age. (Deposition of Pete Lorenzo ("Lorenzo Dep."), Docket No. 59, Ex. T at 98.) During that meeting plaintiff requested a copy of the EEO complaint form and proceeded to fill out her own complaint against Juskowich, Rydzak, Kresh, and Jess. (HR Discrimination/Harassment Compl. by Pl., Docket No. 59, Ex. V.) Plaintiff's allegations against these individuals were that they were unfairly treating her. (Walters Dep. at 109-10.) When asked when she was first harassed or discriminated against, plaintiff answered "I always thought I was. 1992." (Id. at 100-01.) When asked about the nature of the discrimination, she stated "to your question of being discriminated against, people repeated everything." (Id.) She thought other employees would comment about her words or actions behind her back. (Id.) The alleged discrimination also related to her personal life, as coworkers would comment about people she dated. (Id. at 102.) In describing the discrimination, plaintiff said "[i]t's just women being catty." (Id.) The discrimination had nothing to do with her age or gender. (Id.) Plaintiff testified at her deposition that the basis for her charge of discrimination in her EEO complaint was her "[g]etting blamed for something [she] didn't do." (Id. at 106-07.)

After hearing plaintiff's side of the story, Kresh suspended plaintiff without pay pending completion of the inquiry. (10-18-04 Suspension Letter, Docket No. 59, Ex. W; Kresh Dep. 57.) Following the October 18, 2004 meeting with plaintiff, HR assistant director Urban and EEO specialist Scarton prepared a memorandum (the "HR Report") summarizing their investigation into the Juskowich incident and plaintiff's response to Juskowich's allegation. (11-12-04 HR Report.) The HR Report stated that the reasons for finding Juskowich's statement credible were plaintiff admitting to a past comment to Juskowich about the use medical instruments as sexual objects, the overhearing of Juskowich gasp "Karen" by Jada Finley, and Juskowich's own visible signs of distress following the incident. (Id.) HR recommended to the Court of Common Pleas that plaintiff be disciplined up to and including termination. (Id.)

On October 20, 2004, plaintiff, through her union representative, filed a discipline grievance with the Court of Common Pleas and the County asserting that her suspension was without the "just cause" that is required under the collective bargaining agreement to discipline employees. (10-20-04 Discipline Grievance, Docket No. 59, Ex. X.) In her grievance, she also complained about discrimination. (10-18-2004 HR Discrimination/Harassment Compl. by Pl., Ex. V; Walters Dep. at 106.)

In response to plaintiff's filing of the grievance on October 20, 2004, deputy court administrator Jess informed plaintiff and the union that the Court of Common Pleas would not grieve the matter because application of the just cause standard interfered with the court's inherent power to hire, fire, and supervise its employees and was unenforceable. (10-26-04 Letter from Jess, Docket No. 59, Ex. Z.) The County also informed the union, via letter, that it could not grieve plaintiff's suspension because separation of powers' principles precluded it from reviewing court decisions involving the hiring, firing, and supervision of court employees. (2-10-05 Letter from County to Union, Docket No. 59, Ex. AA.)

Plaintiff retained an attorney to help her challenge the suspension. On October 21, 2004, plaintiff's prior counsel sent director Kresh a letter stating that plaintiff's due process rights had been violated because she had been suspended without a proper hearing. (10-21-04 Correspondence from Smith-Delach, Docket No. 59, Ex. BB.) Plaintiff's prior counsel stated that plaintiff's claim concerning the violation of her due process rights was bolstered by the collective bargaining agreement between the County and the union which did not provide for indefinite suspensions without pay. (Id.) In response, labor counsel for the court informed plaintiff's prior counsel that the collective bargaining agreement did not confer upon plaintiff a protected property interest in her judicial employment, because well-settled law holds that collective bargaining agreements do not apply to court employees to the extent that they limit or affect the court's inherent power to hire, fire, and supervise its own employees. (11-15-04 Correspondence from Palumbo, Docket No. 59, Ex. CC.)

The Court of Common Pleas agreed to have a second meeting with plaintiff on December 3, 2004. (Id.) The Court of Common Pleas agreed to convert retroactively plaintiff's suspension without pay to a suspension with pay pending the final outcome of the investigation. (12-13-04 Memorandum, Docket No. 59, Ex. DD.) Although the Court of Common Pleas did not have a formal written policy for handling disputes between court employees, the established practice was to allow each party an opportunity to tell their side of the story. (Jess Dep. at 48-49.) On December 3, 2004, court administrator Weller had a meeting with plaintiff and her two union representatives, Kris Ring and Pete Lorenzo. (Walters Dep. at 98-99; 12-7-04 Report of Weller, Docket No. 59, Ex. P.) At this meeting, plaintiff was again informed of the charges leveled against her by Juskowich. (Walters Dep. at 99, 123-24.) Plaintiff was informed that there were two witnesses to the incident, Jada Finley and Humphries, and plaintiff was again given an opportunity to explain herself and what she believed did or did not occur on October 13, 2004. (Id.; 12-7-04 Report of Weller, Exhibit P.)

Following this meeting, Weller prepared a report and recommendation to Judge O'Dell Seneca. In her report, Weller stated that based upon her interviews with plaintiff and other witnesses, she believed Juskowich's allegations to be credible. (12-7-04 Report of Weller, Exhibit P.) In light of the seriousness of the incident, plus plaintiff's prior disciplinary history, Weller recommended to Judge O'Dell Seneca that plaintiff's employment with the Court of Common Pleas be terminated. (Id.) In addition to considering Weller's report and recommendation and the HR Report, Judge O'Dell Seneca sought input from Kresh and Jess.

Judge O'Dell Seneca asked Kresh to come to her office to discuss the Juskowich incident and Kresh's overall evaluation of plaintiff's job performance. (Kresh Dep. at 47-48.) Kresh told Judge O'Dell Seneca that she felt Juskowich's allegations against plaintiff were credible and that plaintiff's job performance was inadequate. (Id. at 56, 65-67.) Judge O'Dell Seneca asked Kresh what she recommended as a penalty, and Kresh said she felt termination was appropriate. (Id. at 66-67.)

Judge O'Dell Seneca asked for Jess' opinion about the Juskowich incident, as well as plaintiff's overall job performance. (Jess Dep. at 54-55.) Jess recommended to Judge O'Dell Seneca that she terminate plaintiff's employment with the court. (Id.) Based upon HR's investigation, court administrator Weller's investigation, and the eyewitness accounts of the October 13, 2005 incident, Jess believed Juskowich's allegation against plaintiff was credible. (Id. at 57.) He further believed that the Juskowich incident, when combined with plaintiff's lengthy disciplinary history, provided more than sufficient grounds for terminating plaintiff's employment. (Id. at 55.)

Following the December 3, 2004 meeting, Judge O'Dell Seneca took the matter under advisement. Until Judge O'Dell Seneca made a final decision, she continued to keep plaintiff on suspension without pay. (12-13-04 Memorandum, Ex. DD.) In making this decision, Judge O'Dell Seneca relied upon the information contained in the HR Report and court administrator Weller's report and recommendations. (Ct.'s Answer to Pl.'s Interrogs., Docket No. 59, Ex. D, No. 10, 15-19.) Plaintiff's employment was terminated by the Court of Common Pleas on December 27, 2004. (Walters Dep. at 42.) Plaintiff was forty-one years old on the date of her termination. (Id. at 113.) Judge O'Dell Seneca subsequently hired Daisha Bobola to fill the vacant clerk-typist II position once occupied by plaintiff. (Ct.'s Answer to Pl.'s Interrogs., No. 24.) Bobola was in her mid-twenties. (Walters. Dep. at 113.)

On December 29, 2004, plaintiff and her union filed a discipline grievance seeking to arbitrate the Court of Common Pleas' decision to terminate her on the ground that it was without just cause. (12-29-04 Discipline Grievance, Docket No. 59, Ex. FF.) The Court of Common Pleas refused to entertain plaintiff's grievance stating that the just cause provision did not as a matter of law apply to judicial decisions regarding the hiring, firing, and supervision of court employees. (5-16-05 Letter from County HR, Docket No. 59, Ex. HH.) Since neither the Court of Common Pleas nor the County would arbitrate plaintiff's termination, the union filed a charge of unfair practices with the Pennsylvania Labor Relations Board ("PLRB"). (Deposition of Jim Falorio, Dec. 6, 2007, ("Falorio Dep."), Docket No. 59, Ex. GG at 15-17.) On September 13, 2005, the PLRB notified plaintiff and the union that the decision of the Court of Common Pleas to terminate plaintiff was not arbitratable based upon the information submitted. (9-13-05 PLRB Letter, Docket No 59, Ex. JJ.) The union declined to file exceptions to this decision or take the matter to court. (Falorio Dep. at 65-66; Pennsylvania Human Relations Commission ("PHRC") Compl., Docket No. 59, Exhibit KK.) The union's grievance on behalf of plaintiff was withdrawn. (Walters Dep. at 122.)

Plaintiff, through her current counsel, filed a complaint with the PHRC in May 2005 regarding her termination. (PHRC Compl., Ex. KK; Walters Dep. at 109-110.) On August 9, 2005, the PHRC dismissed plaintiff's complaint because it was barred by separation of powers' principles from asserting jurisdiction over the hiring and firing decisions of the Pennsylvania judiciary. (8-9-05 Letter from PHRC, Docket No. 59, Ex. LL.) On October 10, 2006, plaintiff filed the instant federal employment discrimination case.

The first time plaintiff believed she was discriminated against based upon her age was October 2004, when "they started hiring younger and younger people." (Walters Dep. at 108.) At the time she filed her October 18, 2004 EEO complaint with HR, she did not allege that she was discriminated against because of her age. (Id. at 108.) Plaintiff claimed that coworkers Bob Abrams, Martha Ward, Jada Finley, April Plant, and Joe "whatever his last name was that was in the docket room" told her there was a ...


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