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Fusco v. Bucks County of the Commonwealth of Pennsylvania

December 18, 2009

STEPHANIE FUSCO, PLAINTIFF,
v.
BUCKS COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA, EDWARD J. DONNELLY, THOMAS WALTMAN AND OLIVER J. WILSON DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION

This is an employment discrimination and retaliation case under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA"). Before the Court is Defendants' motion for summary judgment. For the reasons that follow, the motion will be granted.

II. BACKGROUND

A. Sheriff's Office

Plaintiff Stephanie Fusco ("Plaintiff") is a current employee with the Bucks County Sheriff's Office ("Sheriff's Office"). Plaintiff began working with the Sheriff's Office in January 1996 as a deputy sheriff and still holds this position. (Doc. no. 18, Ex. B, Personnel Action Form.)

Bucks County ("County Defendant") is a political subdivision of the Commonwealth of Pennsylvania. (Am. Compl. at ¶ 2.) Defendant Edward J. Donnelly is Bucks County's Sheriff. (Doc. no. 18, Ex. D, Donnelly Dep. at 9.) The Sheriff is an elected County official who is the County's chief law enforcement officer. (Id.) Sheriff Donnelly runs a Sheriff's Office of 51 sworn deputies, which includes one lieutenant, four sergeants, four corporals, and 42 deputy sheriffs. (Id. at 9, 12, 18, 21.) Defendant Thomas Waltman is the Lieutenant in the Sheriff's Office. (Doc. no. 18, Ex. E, Decl. of T. Waltman at ¶ 1.) Lieutenant Waltman is responsible for the immediate supervision of the sergeants. (Id.) Defendant Oliver Wilson is a Sergeant in the Sheriff's Office. (Id., Ex. D at 18.) Sergeant Wilson is responsible for the immediate supervision of the deputy sheriffs. (Doc. no. 18, Ex. G, Sergeant Deputy Sheriff Job Description.)

The Sheriff's Office is responsible for, among other things, serving civil process, providing courtroom security, and handling and transporting prisoners going through the court system. (Doc. no. 18, Ex. D at 19-20, 23; Ex. H, Deputy Sheriff Job Description.) Deputy Sheriffs serve civil process, investigate and arrest wanted subjects, transport prisoners, and provide security within the court system by escorting prisoners, placing defendants into custody, and operating the holding cell (Ex. D at 23.) The major assignments for deputy sheriffs are courts, holding cell, zone, warrant squad, and trip car. (Ex. E at ¶ 2.) There is no difference in salary between the different assignments but some assignments carry more opportunities for overtime work and allow access to a deputy sheriff's vehicle. (Id. at ¶ 3.) Sergeants are responsible for assigning the deputies to one of these areas, and the length of the assignments varies. (Id. at ¶ 4; Ex. D at 37, 40.)

Deputy sheriffs assigned to the courts are primarily responsible for providing courtroom security including taking inmates back and forth to the court from prison. (Ex. A., Pl.'s Dep. at 57-58.) A zone assignment involves deputy sheriffs delivering civil papers within a zone, handling levies and evictions and possibly transporting prisoners, if necessary. (Ex. D at 36, 38, 60-61.) There are two warrant squads who actively search for and arrest individuals with outstanding warrants. (Id. at 39.) A trip car assignment involves traveling to different counties and state penitentiaries to pick up prisoners who have hearings in the County. (Pl.'s Dep. at 58-59.)

The majority of the deputies are assigned to the holding cell and courtrooms. (Ex. D at 36.) Currently, there are six deputies assigned to serving civil process; five to the warrant unit; one to firearms and permits; five to transport unit; twelve to the courts; and fourteen to the holding cell. (Doc. no. 18, Ex. I, Bucks County Sheriff's Office Organizational Chart.) Sergeants and lieutenants will shift employees around to cover the Sheriff Office's needs on an informal, routine basis. (Ex. D at 34-35.) There are currently six female deputies. (Pl's Dep. at 199; Doc. no. 18 at 6 n.4.)

The employees of the Sheriff's Office are covered by the County's policies and procedures. Deputy sheriffs are represented by the American Federal of State, County, and Municipal Employees, District Council 88, AFL-CIO (the "Union"). (Doc. no. 18, Ex. J, Decl. of M. Dolan at ¶ 2; Ex. K, Collective Bargaining Agreement between the Union and County.) The collective bargaining agreement has a specific provision prohibiting the County or Union from discriminating against any employee on the basis of sex. (Ex. K at 11.) The Sheriff's Office is also subject to the County's Non-Discrimination and Harassment Policy. (Ex. J at ¶ 6.; Ex. L, Non Discrimination Policy.) This policy prohibits discrimination based on gender and prohibits anyone from retaliating against an individual who brings a complaint of discrimination. (Id., Ex. L) This non-discrimination policy is distributed to all employees, and the County of Bucks Human Resources Department regularly conducts training concerning the non-discrimination policy for all employees. (Ex. J at ¶ 8.)

B. Plaintiff's Employment with the Sheriff's Office

Plaintiff began working as a deputy sheriff on January 8, 1996. (Ex. B, Personnel Action Form; Ex. Q, Appointment Proclamation, dated 1/8/96.) Throughout her tenure as a deputy sheriff, Plaintiff has worked in the holding cell, courts, trip car assignment, and zone assignment. (Pl.'s Dep. at 53, 57, 58, 61.)

In 2005, Plaintiff was not selected for two warrant squads. (Id. at 40, 65-66).*fn1 Plaintiff claims she complained to Defendant Waltman who responded that her husband made a lot of money, she would likely get pregnant soon and she would probably leave her job as a result. (Pl.'s Dep. at 66.) Plaintiff also avers that Defendant Donnelly told Plaintiff that she was not selected for the second warrant squad because the work could be dangerous and Donnelly wondered if her husband would approve of her being on the warrant squad. (Id. at 191-192.) Plaintiff claims that two male deputy sheriffs were appointed to the second warrant squad, both of whom have less seniority and law enforcement experience than Plaintiff. (Id. at 80-81.) Instead of being selected for the warrant squads, Plaintiff was assigned to the Zone 5 (a particular geographical region) assignment. (Id. at 106.) Plaintiff worked in this assignment for seven to eight months until approximately October or November 2005 when she asked to be removed from her zone assignment. (Id. at 105, 110.)

On July 5, 2006, Plaintiff spoke with Rachael Cherry, Human Resources Generalist with Bucks County, complained that Defendants Wilson and Waltman were picking on her and yelled at her to put her hair up. (Doc. no. 18, Ex. N, Decl. of R. Cherry at ¶ 3.) Plaintiff and Defendants disagree about whether, at this meeting, Plaintiff complained about gender discrimination or that she was being treated differently because of her sex. (Doc. no. 18 at 7; Doc. no. 19 at 8). However, Plaintiff did not put her complaint in writing (Ex. N at ¶ 7; Pl.'s Dep. at 295) and the complaint was not investigated. (Pl's Dep. at 175.)

Plaintiff took a seven month medical leave of absence from November 2006 through June 2007. (Pl.'s Dep. at 19; Ex. S, Letter from R. Cherry to Stephanie Fusco, dated 6/5/07.) Plaintiff claims this medical leave was caused by anxiety and stress related to the way she was being treated at work by her supervisors. (Pl.'s Dep. at 182-184, 315-318; Am. Compl. at ¶ 19.) On February 28, 2007, while on medical leave, Plaintiff filed a complaint of gender discrimination against the County with the Equal Employment Opportunity Commission ("EEOC").*fn2 (Doc. No. 19, Ex. G, Letter from Counsel to EEOC.)

When Plaintiff returned to work, she was pregnant. (Pl.'s Dep. at 15.) Due to her pregnancy medical restrictions, she could not pull, push or lift over 20 pounds and she was assigned to work in the office. (Ex. E at ¶ 9; Ex. T, Medical Note from Aaron S. Hasiuk, M.D., dated 6/25/07.) In the office assignment, Plaintiff was responsible for data entry of warrants, answering the phone and filing out paperwork. (Pl.'s Dep. at 20, 44.) Plaintiff worked in the office from June 2007 until she went on for maternity leave in December 2007. (Id. at 19.)

Plaintiff alleges that during the period from June 2007 until December 2007 she was subjected to various acts of retaliation from her supervisors. She avers that Sheriff Donnelly refused to speak with her (id. at 195); the Department refused to permit her to order maternity uniforms (id. at 261-262); the Department refused to let her leave work fifteen minutes early on Fridays (id. at 286); she was required to surrender her firearm even though she claims no other deputies assigned to desk duty had ever before been required to surrender their weapon (id. at 45); she was reprimanded for taking a break in the garage area and a male deputy was allowed to take a break in the garage area (id. at 25-26); Defendant Waltman frequently called Plaintiff "missy" and reprimanded her in a belittling manner (id. at 256-57); Plaintiff was restricted from the Deputy Sheriff's break room (id. at 27); Plaintiff was reprimanded for drinking coffee in a hallway and was told by another deputy that Defendant Wilson said the Department was out to get her. (Doc. no. 19, Ex. D, Pl.'s Dep. at ¶ 6.) Finally, Plaintiff claims she was not selected for two open Sergeant positions in December 2007. (Am. Compl. at ¶ 22.) Plaintiff claims two males with less seniority, and one who had less law enforcement experience, were selected for promotion. (Id.)

Defendants present a different version of the events occurring during the period from June 2007 until December 2007 and reject Plaintiff's assertions that she was subject to any gender discrimination. Defendants claim there is no general light duty policy but that deputies who are pregnant or injured on the job are given the opportunity to work a light duty assignment. (Doc. no 18, Ex. E at 54.) They claim that pregnant deputies who are assigned light duty are restricted from entering or working in the holding cell area and taking a break in the garage area, while pregnant employees from other agencies may work in the holding cell area because they are not under the supervision of the Sheriff's Office. (Ex. E at ¶ 6.) Defendants further claim that Sergeant French, the firearms instructor for the County, recommended that Plaintiff and another male deputy return their firearms based on the fact they were both on light duty and had not qualified for firearms for 9 and 14 months, respectively. (Doc. no. 18, Ex. U, Decl. of T. French at ¶ 3-4; Ex. V, Email from Sergeant French to Lieutenant Waltman, dated 7/2/07.) When Plaintiff returned from maternity leave, she re-qualified and currently carries a firearm in the performance of her duties. (Ex. U at ¶ 10; Pl.'s Dep. at 309.)

Defendants claim that the selection process of the two open sergeant promotions in 2007 were based on of a 20 minute oral exam examination conducted by an outside, three-member board. (Doc. No 18, Ex. D at 47-49; Ex. Z, Oral Board Sergeant's Exam.) The examination board members did not have any background information on the candidates other than candidates' names and positions. (Id. at 48-49; Ex. Z at 1.) The board members gave each candidate a numerical score for each question, based on a 20-point scale. (Ex. D at 52.) Plaintiff placed fourth on the examination. (Ex. A at 232; Ex. AA, Oral Examination score summary sheet.) The two candidates with the highest scores were promoted to the open sergeant positions. (Ex. D at 54; Ex. AA.)

C. Federal Court Proceedings

Plaintiff filed the instant Complaint on May 5, 2008.

(Doc. no. 1.) On August 14, 2008, Plaintiff filed an Amended Complaint. (Doc. no. 10.) Plaintiff's first claim for relief is asserted against the County only and alleges discrimination in violation of Title VII and the PHRA. Count I alleges that Plaintiff "has been, and continues to be, subjected to disparaging and stereotypical statements based on gender by [the Defendant County]." (Id. at ¶ 26.) In the second claim for relief, Plaintiff alleges retaliation in violation of Title VII against the Defendant County. Count II alleges that "Plaintiff filed a complaint of gender discrimination with the EEOC and has been thereafter repeatedly subjected to retaliation by Defendant County for having filed said gender discrimination complaint." (Id. at ¶ 29.) Plaintiff's third claim for relief is asserted against the County and the individual Defendants and alleges retaliation in violation of the PHRA. She alleges "Plaintiff dual-filed complaints. . . with the EEOC and PHRC and has been thereafter repeatedly subjected to retaliation by the County for having filed said gender discrimination complaints. Co-Defendants Donnelly, Waltman and Wilson aided and abetted Defendant County's retaliation by subjecting Plaintiff to unlawful retaliation individually, or by failing to prevent said retaliation, while acting in the scope of their employment. . . ." (Id. at ¶¶ 33-34.)

Defendants filed a motion for summary judgment. (Doc. no. 18.) Defendants, in the instant motion, aver that some of the acts which form the basis for Plaintiff's Title VII claim are barred by Title VII's statute of limitations. In addition, Defendants argue that the Court should grant summary judgment on Plaintiff's remaining timely Title VII and PHRA claims alleging gender discrimination and retaliation because Plaintiff has failed to produce sufficient evidence from which a reasonable jury could find for Plaintiff on her claims of a hostile work environment. Plaintiff filed a timely response ...


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