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Malone v. Economy Borough Municipal Authority

November 9, 2009

KAREN MALONE, PLAINTIFF,
v.
ECONOMY BOROUGH MUNICIPAL AUTHORITY; JAMES J. SAS; AND MATTHEW MARASCO, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. Introduction

This is an employment discrimination case brought by Karen Malone ("Plaintiff") against her former employer, the Economy Borough Municipal Authority ("EBMA"); James Sas, ("Sas"), the Chairman of the Board of the EBMA for the relevant time period; and Matthew Marasco, ("Marasco"), the EBMA Authority Manager for the relevant time period (hereinafter, collectively "Defendants"). Plaintiff alleges that, in retaliation for her decision to file a charge of gender discrimination with the Pennsylvania Human Relations Commission ("PHRC") in early 2005 based on the EBMA's decision to not give her a raise, Defendants intentionally made it difficult or impossible for her to perform her job and then terminated her for her failure to adequately perform, in violation of 42 U.S.C. §1983, ("§1983"), and the Pennsylvania Human Relations Act, 43 Pa. S. §951, et. seQ: ("PHRA"). Defendants have filed a motion for summary judgment, (Docket No.43), arguing that Plaintiff's claims against them fail as a matter of law. In consideration of the parties' submissions, and for the following reasons, Defendants' motion will be denied, in part and granted, in part.

II. Procedural History

Plaintiff filed a complaint against Defendants on December 5, 2007, alleging First Amendment Retaliation in violation of §1983 and retaliation in violation of the PHRA. (Docket No. 1). Defendants filed an Answer to Plaintiff's Complaint on March 13, 2008. (Docket No. 6). Plaintiff made a First Motion to Amend/Correct Complaint on July 23, 2008, (Docket No. 15), which was granted by this Court on July 24, 2008. (Docket No. 16).

Plaintiff thereafter filed a First Amended Complaint on July 24, 2008, again alleging retaliation in violation of 42 U.S.C. §1983 and the PHRA, as well as retaliation in violation of the Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et.seq., ("Title VII"). (Docket No. 17). Defendants filed an Answer to Plaintiff's Amended Complaint on August 13, 2008. (Docket No. 18). On November 14, 2008, the parties filed a Stipulation of Dismissal of Count III of Plaintiff's Amended Complaint, the Title VII claims. (Docket No. 21). This Court granted dismissal of Plaintiff's Title VII claims on November 17, 2008. (Docket No. 22).

Defendants filed a Motion for Summary Judgment, (Docket No. 43) and Concise Statement of Material Facts, (Docket No. 45), on April 27, 2009. They filed their Brief in Support of Summary Judgment and a Motion Nunc Pro Tunc to consider said brief on April 28, 2009. (Docket No. 46). The Court entered an Order on April 28, 2009, granting Defendants' Motion Nunc Pro Tunc, indicating that the Court would consider Defendants' Brief in Support of Summary Judgment as if it were timely filed. (Docket No. 48). After an extension of time to file, (Docket No. 53), Plaintiffs filed a Brief in Opposition to Defendants' Motion for Summary Judgment, Counter Statement of Facts and Response to Defendant's Concise Statement of Material Facts on August 3, 2009. (Docket Nos. 54-55, 58). Additionally, Plaintiff separately filed an Affidavit of Karen Malone and Affidavit of Jaimie George. (Docket Nos. 56-57). Defendants filed a Motion to Strike the Affidavit of Jaimie George and Brief in Support on August 27, 2009. (Docket Nos. 63-64). The Court denied Defendants' motion by Order dated September 10, 2009. (Docket No. 71). Defendants also filed a Response to Plaintiff's Counter Statement of Facts, as well as a Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment on August 27, 2009. (Docket Nos. 65-66). Plaintiff filed a Sur-Reply Brief in Opposition to Defendants' Motion for Summary Judgment on September 10, 2009. (Docket No. 70). Being fully briefed on the matter, Defendants' Motion for Summary Judgment is now ripe for disposition.

III Factual Background

Unless indicated otherwise, the following facts are undisputed.

1. The Administration of the EBMA

The EBMA is a government agency of the Commonwealth of Pennsylvania, whose function is to provide sewage services to the residents of the Borough of Economy. (Docket No. 45 at ¶1; Docket No. 58 at ¶1). The EBMA is governed by a five- member Board of Directors. (Docket No. 55 at ¶2; Docket No. 65 at ¶2). Prior to November 2005, the Chairman of the Board of Directors of the EBMA was William Herniman. (Docket No. 55 at ¶9; Docket No. 65 at ¶9). Sas was Vice Chairman of the Board prior to November 1, 2005, at which time William Herniman resigned and Sas became Chairman. (Docket No. 55 at ¶¶2, 9; Docket No. 65 at ¶¶2, 9). At the time of Plaintiff's termination in April 2006, (Docket No. 55 at ¶86), the five members of the Board of Directors included Sas, (Docket No. 44, Exh. B), Richard Mattern, (Docket No. 44, Exh. F), Jason Jasinski, (Docket No. 44, Exh. E), Rodney Belsky, (Docket No. 44, Exh. I), and John Carl George. (Docket No. 44, Exh. G).

Plaintiff was hired by the EBMA as an office clerk in 1985. (Docket No. 45 at ¶2; Docket No. 58 at ¶2). In her affidavit, Plaintiff indicated that her job duties as office clerk beginning in 1985 included answering the phones, receiving and posting payments, maintaining files and recording minutes from meetings of the Board of Directors. (Docket No. 55 at ¶1). She also noted that she was required to assemble packets for the monthly meetings of the EBMA Board of Directors, which included an agenda, budget, accounts payable, checks sent out and a general report on bank statements. (Docket No. 55 at ¶2). These packets included any additional material the authority manager included such as a manager's report, office report, engineer's report, solicitor's report, list of delinquencies for the month, etc. (Id.) In the 1990s, her title was changed to "office manager." (Docket No. 56 at ¶4). According to Plaintiff, when the title of her job changed, her primary duties remained the same, as did her pay. (Docket No. 56 at ¶4).

Prior to the 1990's, Plaintiff was responsible for balancing two bank accounts. (Docket No. 45 at ¶8; Docket No. 58 at ¶8). In the 1990s, however, the EBMA began a multi-million dollar, two-phase expansion project. (Docket No. 45 at ¶13; Docket No. 58 at ¶13). As a result of the expansion, the EBMA opened four additional bank accounts in the 1990's. (Docket No. 45 at ¶8; Docket No. 58 at ¶8). Additionally, in 1987 the EBMA, anticipating the impending growth, hired a billing clerk for the office and installed a computer system to post payments. (Docket No. 45 at ¶9; Docket No. 58 at ¶9). The billing clerk for the time period relevant to the instant matter was Joan Miller. (Docket No. 45 at ¶10; Docket No. 58 at ¶10). Joan Miller's responsibilities included billing, taking payments from customers, posting payments on the computer and preparing municipal lien letters.

(Docket No. 45 at ¶11; Docket No. 58 at ¶11). The EBMA also hired a temporary employee, Mary Cay Gross,in early 2004 to assist with any needed tasks around the office. (Docket No.45 at ¶15; Docket No. 58 at ¶15).

The EBMA hired Marasco as an Authority Manager February 1, 2004. (Docket No. 59, Appdx. I, Exh. 1a). Marasco's position had both operating and administrative responsibilities at the EBMA. (Docket No.45 at ¶19; Docket No. 58 at ¶19). The job description for Marasco's position provides, in relevant part:

The Authority Manager will have the following duties and responsibilities:

(1) oversee and manage the entire operations of the Authority, including operational and administrative aspects;

(2) provide planning, organization and staff coordination for all Authority operations, encompassing both operations and administrative aspects; ...

(4) participate in financial preparation of both budgetary plan and financial results; ...

(6) supervise all employees of the Authority;

(7) timely reporting and accountability to the Board; ...

(9) prepare written reports as requested by the Board;

(10) provide oral reports to the Chairman of the Board upon request;

(11) attend the regular and special meetings of the Board; and

(12) perform other duties and functions, as from time to time, may be assigned by the Board. (Docket No. 59, Appdx. I, Exh. 3a). Marasco's position required that he spend approximately 80% of his time at the EBMA offices, where Plaintiff was employed, and about 20 % of his time at the operating plant. (Docket No.45 at ¶22; Docket No. 58 at ¶22). At the plant, Marasco was required to oversee the work of the plant operators. (Docket No. 45 at ¶23; Docket No. 58 at ¶23). At the office, Marasco was required to handle customer complaints, information coming in from the engineer's office and the solicitor's office and would handle problems with hooking up new lines and new plant construction. (Docket No. 45 at ¶24; Docket No 58 at ¶24). He also testified that he was required to prepare a budget. (Docket No. 60, Appdx. II, Deposition of Marasco, 16 at 19-25). At meetings of the EBMA Board, Marasco would provide information on flow rates, information about plant operations and the number of taps coming in. (Docket No. 45 at ¶26; Docket No. 58 at ¶26).

Plaintiff testified that, after Marasco was hired as Authority Manager, she had greater responsibilities in her own position. (Docket No. 44, Exh. A, Deposition of Malone, p. 27 at 16-22). Specifically, Plaintiff testified:

Q: When Matt Marasco was hired, did he become your supervisor?

A: Yes, he did.

Q: Did your job responsibilities change after Mr. Marasco was hired?

A: I had more work because he was always giving me stuff to do for him, like call vendors about something. He would get things in the mail that he would want me to respond to for him.

(Id.)

As a result of the two-phase expansion completed during the 1990s through 2006, the EBMA customer base increased from approximately 600 to 3,000. (Docket No. 45 at ¶14; Docket No. 58 at ¶14).The second phase of the sewer expansion project, which was started in 1997, was funded through outside sources. (Docket No. 45 at ¶29; Docket No. 58 at ¶29). In 2002, PennVest, Pennsylvania Infrastructure Investment Authority, (Docket No. 60, Appdx. II, Deposition of Mark Turnley, p. 9 at 10-11), funded a loan. (Docket No. 45 at ¶29; Docket No. 58 at ¶¶29-30). In 2004, the EBMA issued bonds to finance construction of the sewer line and wastewater treatment plant. (Docket No. 45 at ¶30; Docket No. 58 at ¶30). In total, the EBMA completed the entire construction project with a debt service of 33 million dollars. (Docket no. 45 at ¶31; Docket No. 58 at ¶31).

In the year 2000, the EBMA hired Mark Turnley, a Certified Public Accountant and firm owner, (Docket No. 60, Appdx. II, Deposition of Mark Turnley, p. 5 at 8), to perform independent audits. (Docket No. 45 at ¶34; Docket No. 58 at ¶34). When Turnley began completing audits at the EBMA, it did not have a set of financial statements, such as a balance sheet or a profit and loss statement, that were required to complete the audit. (Docket No. 45 at ¶35; Docket No. 58 at ¶35). At the time, Plaintiff kept the EBMA's books in spreadsheet fashion and maintained a listing of the EBMA's categories and expenses, which she updated monthly. (Docket No. 45 at ¶36; Docket No. 58 at ¶36). Likewise, Plaintiff kept all records of receipts of billing and other revenues in a spreadsheet, summarizing those receipts by category. (Docket No. 45 at ¶37; Docket No. 58 at ¶37). Turnley used Plaintiff's information and financial statements to perform his audits. (Docket No. 45 at ¶38; Docket No. 58 at ¶38).

After his 2004 audit, Turnley met with the EBMA Board in order to explain his accounting process and what needed to be done in order to produce basic financial statements. (Docket No. 45 at ¶40; Docket No. 58 at ¶40). At his deposition, Turnley testified that, as a result of the PennVest loan issued in 2002 and the bond issue in 2004, the Board of Directors requested an increased level of financial reporting. (Docket No. 60, Appdx. I, Deposition of Mark Turnley, p. 12 at 2-7). Turnley specifically testified:

A. Well, the Board had asked me after we did the 2004 audit -- and that was the year that the Authority got their large bond issue, the 14 or $15 million bond issue.

It became -- the Board wanted an increased level of reporting, and they asked me to come to a Board meeting and explain what the process was in the Authority and what we needed in order to be able to produce those basic financial statements that I referred to before. And in the process of having that conversation with the Board, I explained to them what [Plaintiff's] process was and the whole equation.

(Id.) Turnley explained to the Board that, in order to complete his audits, he would take Plaintiff's records, which were recorded on a cash basis of accounting, and convert them to a full accrual basis of accounting, in order to be compliant with generally accepted accounting principles. (Docket No. 45 at ¶45; Docket No. 58 at ¶41). Turnley testified:

A. ... So there were entries that had to be made in order to consolidate or summarize [Plaintiff's] information into this general ledger. That also included -- what kind of brought this to an even greater level of importance was because we were dealing with the bond issue, the new bond issue, the PennVest monies - [Plaintiff] had set up new accounts. We had new trust accounts with the trustee, and all of that information was not being recorded.

[Plaintiff] wrote the checks to the contractors as they were needed. There wasn't an issue there, but none of that information was being summarized and recorded into a general ledger, which was what would be needed in order to produce these basic financial statements. (Docket No. 60, Appdx. II, Deposition of Mark Turnley, p. 14 at 2-25; p. 15 at 1-20; p. 16 at 1-6).

2. Plaintiff's PHRC Charge

In early 2005, Plaintiff and another female employee, Joan Miller, filed a charge of gender discrimination with the PHRC, as a result of the Board's decision to award raises to all three male employees, but to deny Plaintiff and Miller raises for the year 2005. (Docket No.55 at ¶¶3-5; Docket No. 65 at ¶¶3-5). Sas testified in his deposition that the Board has decided not to award Plaintiff and Miller raises for the year 2005 because it "had taken exception to work product of the office."(Docket No. 44, Exh. B, Deposition of Sas, p. 15 at 7-8). Specifically, Sas testified that the Board had concerns over "lack of proper bookkeeping, a lack of record integrity, concern over the skill sets of the existing office employees to perform duties, and concern over the financial accuracy of the financial statements." (Docket No. 44, Exh. B, Deposition of Sas, p. 15 at 18-21).

Marasco testified that he recommended a four percent raise for all employees of the EBMA, including Plaintiff and Joan Miller for the year 2005. (Docket No. 60, Appdx. II, p. 30 at 13-15).

In regard to the 2005 raises, Marasco testified:

Q: What was your knowledge of how the raises were awarded for the 2005 year? How did it come about that some people got raises and other people did not?

A: It was proposed to the Board my recommendations for an increase.

Q: You recommended that the male employees get an increase and that the female employees did not get an increase; is that right?

A: No.

Q: What did you recommend?

A: I believe I recommended a four percent increase for everyone.

Q: The Board eventually didn't give the women a raise; is that right?

A: The Board initially didn't give the office staff a raise.

Q: Who happened to be women?

A: Yes, they were. (Docket No. 60, Appdx. II, Deposition of Marasco, p. 38 at 3-20).

As a result of being declined raises in2005, Plaintiff and Joan Miller filed gender discrimination claims with the PHRC. Marasco received a copy of the PHRC Complaint in the mail, which he forwarded to the EBMA solicitor. (Docket No. 45 at ¶47; Docket No. 58 at ¶47). Plaintiff was informed during the PHRC fact-finding stage that the EBMA's alleged basis for denying her and Joan Miller a raise was poor work performance. (Docket No. 45 at ¶50; Docket No. 58 at ¶50). The Board settled both Plaintiff's and Miller's claims of gender discrimination at that time because it lacked documentation exhibiting poor work performance. (Docket No. 45 at ¶49; Docket No. 58 at ¶49). Plaintiff and Joan Miller were given retroactive raises in April 2005.(Docket No. 55 at ¶7; Docket No. 65 at ¶7; Docket No. 59, Appdx. I, Exh. 24a).

Marasco was not part of the discussion to settle the PHRC claim, nor was he aware of a settlement agreement. (Docket No. 45 at ¶¶52-3; Docket No. 58 at ¶¶52-3). He became aware of the retroactive raises at an executive session of the Board of the EBMA. (Docket No. 45 at ¶54; Docket No. 58 at ¶54).

Richard Mattern, a member of the EBMA Board, testified at his deposition that Sas seemed to be "disgusted" by the result of the PHRC charge. (Docket No. 44, Exh. F, Deposition of Richard Mattern. P. 14 at 10-11). Specifically, Mattern testified:

Q: Did you ever think that he exhibited some resentment or anger at having to give raises to these women who filed the charge of discrimination because they had filed the charge of discrimination?

A: His actions was like he was disgusted, what I observed, but there was no verbal ...

Q: What actions are you looking at when you say he was disgusted?

A: He had a copy of the document, and he basically just took it and went like this down ...


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