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Brown v. Washington County

May 27, 2009


The opinion of the court was delivered by: Hay, Magistrate Judge


Plaintiff, Dana L. Brown, brings this action against Defendants, Washington County and Washington County Child Care Information Services, alleging that, on May 19, 2004, they unlawfully terminated her from her position as an Information Specialist based on her race (African-American) and her disability (irritable bowel syndrome), thereby violating her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000-e to 2000e-17 (Title VII), the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12117 (ADA), the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (PHRA), and the Pennsylvania constitution. Defendants have filed a motion for summary judgment. After careful consideration of the motion, the memoranda of law in support and in opposition and the supporting materials supplied by the parties, this Court will grant Defendants' motion.


Plaintiff is an African American female. (Compl. ¶ 5.)*fn1 She was employed by Washington County in its Child Care Information Services ("CCIS") department as an Information Specialist from 1998 to May 19, 2004, when her position was eliminated. (Defs.' App. Ex. A*fn2 ; Brown Dep. at 10, 41-42.*fn3 ) CCIS is a department of Washington County that provides subsidized child care and information and referral services to working families. (Kimmel Dep. at 14.)*fn4 Plaintiff's duties as an Information Specialist consisted of primarily clerical functions such as answering the phones, greeting people, supporting other staff, and distributing mail. (Kimmel Dep. at 26, 87.)

Timothy Kimmel was hired by the County in March of 2004 to investigate and address internal problems within the CCIS department, specifically personnel issues. (Kimmel Dep. at 4, 19-20.) Kimmel spends half of his time as the Director of CCIS and the other half as the Human Services Director. (Kimmel Dep. at 15.)

After a review of the nine employees' personnel files within the department and personal interviews with each, he determined that there were a number of unhappy employees and a reorganization was required. ((Kimmel Dep. at 23.) He then investigated the specific job functions required to run the department by speaking with the Department of Public Welfare and other CCIS departments. (Kimmel Dep. at 25.) Kimmel looked at what positions he needed to maintain the Department and adequately service the citizens of Washington County. Based upon the level of activity in the department and discussions with other CCIS departments, Kimmel concluded that he had two Information Specialists and that he only needed one. (Kimmel Dep. at 28.) Kimmel also concluded that the department needed only two, and not three, Eligibility Coordinators, and he terminated the Director and the Fiscal Technician. (Kimmel Dep. at 28.)

Kimmel states that the reason that Plaintiff was terminated was due to the fact that an Information Specialist position had been eliminated as part of the reorganization and he had to decide which of the two would continue to be employed. (Kimmel Dep. at 49.) When presented with the decision as to who would be retained by the County, Kimmel considered the job performance of Plaintiff and Jerry Fleming, the other Information Specialist, but mostly he considered the issue of attendance. (Kimmel Dep. at 49.) Kimmel looked at the attendance records of each of the employees who were employed in positions in which the number of employees was going to be reduced, including Plaintiff and Fleming. (Kimmel Dep. at 55.)

With respect to Plaintiff, Kimmel states that he reviewed performance reviews dating back to 2001, which demonstrated an attendance issue. (Kimmel Dep. at 57-58.) Plaintiff responds that all of the absences were either legally excused with medical support, consistent with County policy and/or covered by the Family and Medical Leave Act. (Brown Dep. at 37-38.)

According to Defendants' records and as reflected on Plaintiff's Performance Appraisals, which she signed, she missed 27.19 days from July 2001 through June 2002; 21.06 days between January 2002 through December of 2002; 15.5 days between January 2003 and December 2003; and 13 days between January 12, 2004 and February 9, 2004 (6 of which were accepted as FMLA leave). (Defs.' App. Ex. C.)

Plaintiff's Performance Appraisal from July of 2001 through June of 2002 states that she "needs to work toward an acceptable attendance record." (Defs.' App. Ex. C.) The Performance Appraisal from January 2002 through December 2002 states that she "must work to meet an acceptable attendance record." (Id.) The Performance Appraisal from January 2003 through December 2003 states "Poor attendance has at times had direct affect on meeting required deadlines" and "attendance does not meet acceptable County limits." (Id.)

Plaintiff was sent to the Employee Assistance Program (EAP) for her attendance records in September of 2003. (Brown Dep. at 43.) Plaintiff was issued a written warning on February 11, 2004 stating "[i]t is evident that you have continued to abuse the sick leave system in 2004." Plaintiff signed the Written Warning. She was referred to the EAP for counseling and directed to continue sessions until her attendance improved. (Defs.' App. Ex. D.) Plaintiff contends that the EAP counseling was for personal issues she was experiencing relating to her father, who was ill and who subsequently passed away. (Brown Dep. at 36, 43-44.) However, that contention is not supported by the document of record, which states that she was sent to EAP counseling because of her absences.

Kimmel stated that "an excused absence from work is just that. But her attendance and tardiness, in my mind, went beyond excused absences." (Kimmel Dep. at 58-59.) Kimmel also noted that Plaintiff had been sent to internal counseling sessions with the EAP, and she actually failed to attend a session on March 22, 2004. (Kimmel Dep. at 59; Def.'s App. Ex. E.)

Kimmel states that he also considered the personal issues that Plaintiff had brought to work, which concerned her co-workers. (Kimmel Dep. at 66.) Apparently, Plaintiff told her co-workers that a drive-by shooting had occurred at her home and on another occasion she told them that her brother was missing or absent, and the co-workers had expressed concern for their own safety because they worked with her. (Kimmel Dep. at 66-67.) Kimmel's response to Plaintiff's supervisor when she notified him about these incident was to counsel Plaintiff not to bring matters like that into the office. (Kimmel Dep. at 68-69.) Plaintiff contends that this represents a cultural stereotype and that Kimmel should not have based his decision on the irrational fears of her co-workers.

Ultimately, Kimmel determined that Plaintiff's position would be eliminated, and that Fleming, also an African American, would retain her position. Plaintiff contends that Kimmel structured the so-called reorganization in such a way that the one of the two African-American employees in the nine-person department would be guaranteed to be terminated. (Kimmel Dep. at 71-72.)

Plaintiff was advised that her position had been eliminated on May 19, 2004. (Def.'s App. Ex. A; Brown Dep. at 48.) Plaintiff states that Kimmel told her the reason was "budgetary." (Brown Dep. at 50.)

Kimmel made the final decision with respect to hiring and firing and the County Commissioners had final approval. (Kimmel Dep. at 17.) Kimmel's decisions have never been overruled by the County Commissioners. (Kimmel Dep. at 17.) The County Commissioners approved Kimmel's decision for the reorganization of the CCIS department. (Kimmel Dep. at 30.)

Plaintiff stated at her deposition that she had no evidence or any reason to believe that Kimmel, the individual who designed the reorganization plan, was prejudiced against African Americans. (Brown Dep. at 58.) She also stated that she has no evidence that Michelle Miller Kotula, the head of human resources, was prejudiced against African Americans. (Brown Dep. at 61.) She bases her claim on the fact that Kelly Hanna, a white employee with attendance issues, received more favorable treatment. (Brown Dep. at 39, 58.) She also refers to the fact that there was a drive-by shooting at her home (with which she contends she had no personal involvement), and argues that this raised an unfounded and stereotyped fear in her co-workers which played a part in the loss of her job. (Kimmel Dep. at 66-67.)

Plaintiff admits that Hanna worked as a Resource and Referral Specialist, and that her own position was an Information Specialist. (Brown Dep. at 40.) Defendants note that the job description of Resource and Referral Specialist reads "a bachelor's degree in social work, psychology, sociology or a related field or experience in resource and referral is preferred." (Def.'s App. Ex. G.) Plaintiff does not hold a bachelor's degree, and testified that her only experience in the required field was that she provided support services as an Information Specialist to Sandy Sabot, a Research and Referral Outlook Specialist. (Brown Dep. at 45, 59-60.)

Plaintiff responds that the only formal education requirement for the position of Resource and Referral Specialist is "a high school diploma or equivalent, with general office/customer service experience and computer (word processing) skills." Not only did she have all these skills, but she also had completed more that two ...

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