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Fiala v. Bogdanovic

October 8, 2009

KATRINA FIALA, PLAINTIFF
v.
DAVID BOGDANOVIC, DONALD BRINK, JASON UMBERGER, AND TOWNSHIP OF SWATARA, DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court is Defendants' motion for summary judgment (Doc. No. 23). In their motion, Defendants argue that the case should be dismissed and judgment entered in their favor because Plaintiff Fiala fails to support an Equal Protection claim against them. For the reasons that follow, the motion will be granted in part and denied in part.

I. BACKGROUND

In July of 2005, Plaintiff Katrina Fiala was hired as a probationary police officer for Swatara Township. (Doc. No. 25 ¶¶ 1-2.) Prior to beginning her employment at the police department, Plaintiff attended policy academy training at Harrisburg Area Community College along with three other prospective officers, Eric Morris, Ryan Williamson, and Jason Lex. (Doc. No. 24-3 at 9.) After attending the academy but prior to beginning official duty, Plaintiff attended a required one and one half week training period that included training on the Township's sexual harassment and reporting policy. (Doc. No. 25 ¶ 6-7.)

Upon conclusion of the mandatory training period, Plaintiff was assigned to "street duty" under field training officer Patrolman Scott Neal. (Doc. No. 23 ¶ 12.) Although she believes he treated all trainees equally on the basis of gender, Plaintiff alleges that she was disadvantaged during her field training because Officer Neal did not spend adequate time training her "on the streets." (Doc. No. 24-3 at 10-11.) Plaintiff approached Officer Neal about her training concerns, and he provided her with more "on the street" training. (Id.) Plaintiff had other problems during field training, however. Plaintiff was late to work during field training three times, December 21, 2005, December 25, 2005, and February 10, 2006, which resulted in her being counseled as to the importance of arriving for duty on time. (Doc. No. 25 ¶¶ 11-12.) She arrived late for work again on May 24, 2006, and on June 7, 2006. (Doc. No. 25 ¶¶ 22-23.) Defendant David Bogdanovic, Chief of Swatara Township Police Department, issued an oral reprimand and counseled Plaintiff in response to these latter incidents of tardiness. (Doc. No. 25 ¶¶ 22-24.) Also in May and June of 2006, Plaintiff was counseled regarding her to a failure to complete and submit her case reports on time. (Doc. No. 25 ¶ 19.) In September of 2006, Plaintiff misplaced a cell phone with sensitive internal department numbers while on duty. (Doc. No. 25 ¶¶ 27, 29.) Sargeant Zimmerman spoke with Plaintiff regarding ongoing concerns about her job performance, her tardiness, the untimeliness of her casework, and her inattention during roll call. (Doc. No. 25 ¶ 30.)

In October of 2006, Plaintiff initiated a traffic stop on a vehicle she observed driving erratically. (Doc. No. 24-3 at 37.) In running a search of the license plate number from her patrol vehicle, she discovered it was her ex-boyfriend, Joe Pavucsko's, car. (Doc. No. 24-3 at 37.) Pavucsko had previously attempted to break into Plaintiff's home and had harassed her by calling her at work. (Doc. No. 24-3 at 36-37.) In light of her past interactions with Pavucsko, Plaintiff called for assistance to have other officers conduct the traffic stop. (Doc. No. 24-3 at 37.)

Pavucsko responded to this incident with a complaint to the department that Plaintiff was harassing him. Sargeant Farling investigated the incident, but Plaintiff was not disciplined. (Doc. No 24-3 at 38.)

Plaintiff alleges that Defendant Jason Umberger, Deputy Chief of Swatara Township Police Department, harassed her by calling her at home "in a very loud tone and manner" on her day off and yelling at her for having a long distance phone rather than a local phone number. (Doc. No. 24-3 at 39.) Defendant Umberger also allegedly attempted to write her up for not following the chain of command, but Defendant Umberger's complaint was unsubstantiated and did not result in a written complaint against Plaintiff. (Doc. No. 24-3 at 39.) Defendant Umberger also referred to Plaintiff's personality as unprofessional, describing it as too "bubbly," and repeatedly raised her ex-boyfriend's conduct in conversations. (Doc. No. 24-3 at 17, 36.)

Plaintiff alleges that Defendant Donald Brink, a Sargeant at the Swatara Township Police Department, harassed her as well. During taser training, Corporal Gallick suggested to Defendant Brink that he initiate a taser hit into Plaintiff's buttocks instead of her back or leg, where all other trainees had been hit. (Doc. No. 24-3 at 40.) He also referred to Plaintiff and the other female officers as the "PMS squad" when working together, suggesting that they would be less likely to adequately perform their duties at certain times of the month. (Doc. No. 24-3 at 41-42.)

Plaintiff alleges that Defendant Bogdanovic harassed her on several occasions. Specifically, he "repeatedly asked about [her] dating situation" by inquiring into whether she "was interested in older men." (Doc. No. 24-3 at 42.) He then allegedly invited himself inside of her home for a tour while they were on patrol duty. (Doc. No. 24-3 at 43.) On another occasion while Plaintiff was on patrol duty, Defendant Bogdanovic asked her to drive him to pick up his dry-cleaning. (Doc. No. 24-3 at 45.) Once in the car, however, he directed Plaintiff to a Serbian church and the pastor's house adjacent to the church. (Id.) He then showed Plaintiff a picture of the pastor's son, a man in whom he thought Plaintiff might be romantically interested, and introduced her to the pastor. (Doc. No. 24-3 at 46.) Plaintiff was uncomfortable with the situation and asked to return to the station to recharge her flashlight. (Id.) Defendant Bogdanovic also allegedly initiated a workplace discussion with her about a practice called "anal bleaching," allegedly done by participants of the adult film industry. (Doc. No. 24-3 at 44.) On two occasions, Defendant Bogdanovic gave Plaintiff a gift card: once after Defendant Umberger called her at home regarding her telephone number, and also after he had questioned her about dating one of his friends. (Doc. No. 24-3 at 40, 42.)

Though Plaintiff had been informed of the sexual harassment policy at the department and felt Defendants' actions were harassing, she did not complain about any of the aforementioned events because she was still a probationary officer and was "afraid that it would somehow affect [her] job." (Doc. No. 24-3 at 46.) On November 16, 2006, when Plaintiff's probationary period was to expire, she was offered a six-month extension of her probationary period. (Doc. No. 25 ¶ 31.) Although she did not agree that her performance merited an extension of the probationary period, she accepted the extension because she thought it was better than being terminated from her position. (Doc. No. 24-3 at 20.) Plaintiff was advised that her probation was being extended because of her lateness, the problems with her reports, and the problems with her ex-boyfriend. (Doc. No. 29-3 at 20.) Although Plaintiff admits that she was tardy and had some problems getting reports in on time, she does not believe that these were the real reasons for the extension of her probation. (Doc. No. 24-3 at 20, 34.) Plaintiff reported late for work again on January 21, 2007, and she was terminated from employment on February 14, 2007. (Doc. No. 25 ¶¶ 35, 39.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party "fails to make a showing sufficient to establish ...


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