The opinion of the court was delivered by: Judge McClure
On October 31, 2008, plaintiff Diane Kerstetter instituted this civil action, through counsel, against defendants Pennsylvania Department of Corrections SCI-Coal Township (hereinafter "SCI-Coal Township"), Joseph Piazza, Thomas Spence, Nancy Wilson, and Dave Popek. In her complaint, Kerstetter filed the following eight counts: violation of 42 U.S.C. § 1983 (Count I), violation of 42 U.S.C. § 1985 (Count II), retaliation in violation of Title VII of the Civil Rights Act of 1964 (Count III), gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (Count IV), age discrimination in violation of the ADEA (Count V), intentional infliction of emotional distress (Count VI), civil conspiracy (Count VII), and constructive discharge (Count VIII).
On January 5, 2009, defendants filed a motion to dismiss. (Rec. Doc. No. 12). Defendants requested an extension of time to file their supporting brief; therefore, their supporting brief was timely filed on January 27, 2009. (Rec. Doc. No. 19). Plaintiff filed her opposing brief on February 11, 2009 (Rec. Doc. No. 20), and defendants filed their reply brief on March 2, 2009. (Rec. Doc. No. 21). On May 5, 2009, this Court granted in part and denied in part the defendants' motion to dismiss. (Rec. Doc. No. 22). We allowed to continue Count I, alleging via 42 U.S.C. § 1983 deprivations of Kerstetter's First and Fourteenth Amendment rights against defendants Piazza, Spence, Wilson, and Popek. We also allowed Count II to continue, which alleges via 42 U.S.C. § 1985 deprivations of the plaintiff's First and Fourteenth Amendment rights against defendants Piazza, Spence, Wilson and Popek. Plaintiff's Count III claims, construed as a Title VII claim against SCI-Coal Township and a PHRA claim against Piazza, Spence, Wilson, and Popek alleging retaliation, were also allowed to continue. In addition, we declared as actionable plaintiff's Count IV claims, construed as a Title VII claim against SCI-Coal Township and a PHRA claim against Piazza, Spence, Wilson and Popek alleging gender discrimination. Finally, Count V, construed as a a PHRA claim by plaintiff against Piazza, Spence, Wilson and Popek alleging age discrimination was also permitted to continue.
Defendants filed an answer to plaintiff's complaint on June 2, 2009. (Rec. Doc. No. 26).
On October 22, 2009, defendants filed a motion for summary judgment. (Rec. Doc. Nos. 34). Subsequently, this Court granted two motions by defendants seeking extensions of time in which to file a supporting brief and other documents related to the motion for summary judgment. (Rec. Doc. Nos. 37 and 39). Defendants filed a brief in support of their motion for summary judgment and the requisite statement of material facts*fn1 on November 24, 2009 (Rec. Doc. Nos. 40 and 41).*fn2 After we granted the plaintiff three extensions of time in which to file a responsive brief (Rec. Doc. Nos. 47, 49, and 51), the plaintiff filed her brief in opposition to the defendants' motion for summary judgment on December 16, 2009 (Rec. Doc. No. 52).*fn3 This Court granted an unopposed motion by defendants seeking an extension of time in which to file a responsive brief (Rec. Doc. No. 55), and the defendants filed a reply brief on January 16, 2010 (Rec. Doc. No. 56). In light of the above, the matter is ripe for disposition. Now, for the following reasons, we will grant in full the defendants' motion for summary judgment.
III. Factual Background*fn4
Taken in the light most favorable to the non-moving party, here plaintiff Kerstetter, the salient facts are as follows. At all times pertinent to the instant motion, Diane Kerstetter was at least 60 years of age. The Department of Corrections ("DOC") is a department within the executive branch of the Commonwealth of Pennsylvania. In this case, plaintiff has named as defendants (1) SCI-Coal Township, a correctional facility operated by the DOC; (2) Joseph Piazza, formerly the superintendent of SCI-Coal township and presently the warden for Luzerne County Prison; (3) Thomas Spence, identified in correspondence as the Director of Human Resources; (4) Nancy Wilson, Accountant at SCI-Coal Township and acting Business Manager since October 2008; and (5) David Popek, formerly the Business Manager for SCI-Coal Township.
SCI-Coal Township hired plaintiff Diane Kerstetter as a Clerk Typist I in regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same..., such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated.... January of 1994. Kerstetter was then transferred to the Business Office in August of 1994. A few months later, in October of 1994, Kerstetter was promoted to Clerk Typist II. Less than two years later, on August 25, 1996, Kerstetter applied for, and was appointed to, the position of Accounting Assistant.
In 2003, Kersttetter was called to testify concerning an investigation related to at least two employees at SCI-Township: William Voeckler, the Business Manager for SCI-Coal Township, and Nancy Wilson, a Clerk Typist II at the time. During the course of this investigation, Kerstetter and Lisa Howerter, among others, were interviewed. Kerstetter and Howerter no longer work in the Business Office. Judy Kleha Stansfield ("Kleha"), who still works in the Business Office, did not testify as part of the investigation.
After the investigation, Voeckler remained Business Manager at SCI-Coal Township and Wilson was transferred to medical records. Apparently, Voeckler and Wilson were not to socialize and, when the two were found together. Voeckler was asked to, and did, resign from his position.
Wilson claims that the details of the investigation were never disclosed to her and that she did not know whom the investigators interviewed until after Kerstetter filed the instant lawsuit. On the other hand, plaintiff claims that "[t]he interviews were conducted at the institution right under the nose of Nancy Wilson." (Rec. Doc. No. 52-2 at 4). Plaintiff also claims that, at a time when Wilson was Accountant at SCI-Coal Township and Kerstetter's supervisor, Wilson told her on two or three occasions that Wilson knew who testified.*fn5 During one of these occasions, plaintiff claims that Wilson told another employee, Jane Hinman, that "one there in the front office should be fired." Id. Plaintiff claims that she felt threatened, intimidated, and retaliated against for testifying during the investigation.
Defendants contend that Kerstetter and Kleha were constantly at odds with each other. On the other hand, plaintiff contends that Kleha was the source of the conflict and that Kleha was moved to the plaintiff's department because Kleha could not get along with her old co-workers. Plaintiff points to an evaluation in 2006 in which Kleha received a lower evaluation than Kerstetter, an inappropriate posting made by Kleha in the Business Office, and the plaintiff's own verbal and written complaints concerning Kleha.
On August 7, 2006, defendants assert that Piazza transferred Kerstetter temporarily to the mailroom. It is the defendants' position that this decision was made by Piazaa, not Wilson or Popek,*fn6 and that the transfer was to last for only three to six months.
Plaintiff disagrees that the move was clearly temporary. As support for this contention, plaintiff points to the fact that she was called to the office of Rosemary Pawelczyk, located in the Budget Analyst's Office, when plaintiff was informed that she would be moved to the mailroom and that Wilson was present for the meeting. In addition, plaintiff notes that an email sent from Pawelczyk to Theresa Jellen, the mailroom supervisor, states that "whether Ms. Kerstetter's move is temporary or permanent has not yet been determined by the superintendent." (Rec. Doc. No. Exhbt. W). Plaintiff claims that she was never told the move would be temporary. Plaintiff asserts that, on August 4, 2006, she emailed Wilson to inform Wilson that Kleha was not "being a team player" and that plaintiff would discuss the issue with Popek, and possibly the Superintendent, if the matter was not resolved. (Rec. Doc. No. 52-2 at 8). Kerstetter was subsequently moved to the mailroom on August 7, 2006. Plaintiff also asserts that Spence did not concur with the move and that Kleha was never moved.
Defendants claim that Piazza's decision to transfer Kerstetter to the mailroom was made to temporarily resolve the fighting between Kerstetter and Kleha. In addition, defendants note that Kleha was not moved because, as she was a pay grade three, she would have been entitled to out-of-class pay if moved. Plaintiff claims that, when she asked Piazza for the reason behind her move, he said that it was because of a "hostile work environment." Id. at 9. Plaintiff also claims that the out-of-class pay reason for moving her was given only after she pressed the defendants to support their reasons for the move; plaintiff notes that Wilson and Kelly Park were recently paid out-of-class pay in their roles as acting Business Manager and Accountant. Plaintiff also contends that others were available to do the work in the mailroom and that these individuals would have been a better fit, especially in light of lift restrictions placed upon Kerstetter because of back problems.
Defendants purport that Kerstetter's transfer was not disciplinary in nature and that it did not affect her pay grade or benefits. However, Plaintiff claims that the move was a disciplinary action and that she felt punished. Plaintiff contends that she felt the move to the mailroom was a step down, with different duties and a dirtier work environment. Also, Kerstetter contends she no longer had her own cubicle, as she did in the Business Office. Plaintiff also claims that, even though she should have had a new supervisor, Theresa Jellen, Wilson continued to be her supervisor in the mailroom for a few months after the move. Plaintiff claims that the move affected her health and caused her to go on sick leave, as recommended by her doctor.
After the move to the mailroom, other points of disagreement between Kerstetter and the defendants arose. Defendants claim that, after Kerstetter was moved to the mailroom, Wilson asked her to box up items at her desk in the Business Office. Wilson stated that she was concerned other co-workers might take and use the items, as the items were in a common area. Eventually, Wilson placed the items in a box herself. Plaintiff denies that Wilson ever asked her to box up these items. Instead, plaintiff asserts that, when she learned that Wilson had boxed up the items, plaintiff had a meeting with Popek, at which time she indicated that, if asked, she would have boxed the items up herself. Plaintiff notes that these items were not in a common area; instead, the items were at her desk, which was in her own cubicle. Plaintiff admits, however, that Wilson did box up the items while plaintiff was on sick leave.
Another source of conflict was Kerstetter's lamp, which Wilson noticed was missing from Kerstetter's desk in the Business Office after Kerstetter's move to the mailroom. Wilson asked Kerstetter about the lamp. Plaintiff claims that Jellen took the lamp and gave it to Kerstetter. After Wilson asked her about the lamp, a meeting was scheduled with Wilson, Jellen, Popek, a Connie Dunleavy, and Kerstetter. Plaintiff was not disciplined over the matter, but says that the "entire incident was to simply continue to harass Plaintiff." (Rec. Doc. No. 52-2 at 13).
In January of 2007, Kerstetter was transferred back to the Business Office. Plaintiff claims that this transfer was made because of her work with her union and the complaints she lodged with the Superintendent and Chieke.
Defendants state that, when Kerstetter was moved back to the Business Office, she returned to a cubicle, while before the move she worked in an open area. Wilson claims this change was made because Kleha needed to be in an open area and because she was hoping to reduce conflict between Kleha and Kerstetter. Plaintiff counters that her old desk, which allegedly remained empty upon her return, was in a large cubicle area, while her new work area was located in a small cubicle in a row of desks for clerk typists. Plaintiff also claims that her old desk is now being used by her replacement, Kelly Park, who was 44 years of age at the time. Defendants claim that an open area was better for Kleha because, as part of her job, she was required to use a cable computer and three filing cabinets. Plaintiff counters by noting that all employees utilized the three cabinets and that Kleha did not perform any cable duties before Kerstetter was transferred to the mailroom, and the only reason Kleha was performing cable duties was to cover some of Kerstetter's duties while Kerstetter was in the mailroom.
Upon Kerstetter's move to the mailroom, Kleha and Howerter asked Wilson if their lunch times could be changed. Wilson agreed. Defendants assert that, as a result, upon Kerstetter's return to the Business Office, she was given a different lunch hour, for coverage purposes, than she had previously. Plaintiff asserts that her lunch time was changed to prevent her from being able to have lunch with her friends. She also denies that the lunch time change was made for coverage purposes because an employee was always there to answer the phone.
Defendants admit that Kerstetter's duties changed upon her return to the Business Office. Defendants point to the reason for this change as being the fact that, while Kerstetter was in the mailroom, Kleha was trained to do a number of Kerstetter's tasks. Defendants claim that, upon her return, Kerstetter was not asked to do anything that was not in her job description. Plaintiff also contends that, upon her return to the Business Office, she was in fact charged with additional responsibilities not in her job description, such as IGWF Payable, Jpay, and Venda cards.
In her 2001-2002 performance review, Kerstetter received an overall rating of commendable in a review prepared by a Michael Brown. The review noted that the plaintiff "needs to work on her ability to interact with her co-worker." It was also recommended that Kerstetter take required training as well as stress management and conflict resolution. Upon his review, Voeckler stated that Kerstetter "needs to put more effort into working in harmony with her co-workers." Plaintiff claims she was not the one causing or creating the conflicts and also claims that it was common practice for such training to be recommended in an evaluation. She also claims that, after she refused to sign the evaluation, she submitted comments. Plaintiff notes that Kleha received a lower evaluation than plaintiff for the 2001-2002 evaluation period.
Kerstetter's 2002-2003 evaluation, also prepared by Michael Brown, and her 2003-2004 evaluation, prepared by a Joseph A. Broscious, contained similar recommendations pertaining to training and Kerstetter's interpersonal relations with her co-workers. For both time periods her evaluation was commendable.
Kerstetter received an overall rating of satisfactory in her 2005-2006 performance review, which was prepared by Nancy Wilson. Wilson reiterated the recommendations that Kerstetter take training classes and that Kerstetter needed to become a team player. Although Wilson stated that Kerstetter had shown improvement, Kerstetter received a rating of only satisfactory.
Kerstetter resigned in May of 2007. Defendants claim that Kerstetter did not discuss with anyone, prior to her resignation, her intent to resign or alternatives to resignation that may have existed. Plaintiff disputes this contention. First, plaintiff contends that she had been on the civil service list for a fiscal technician position in 2005 until it expired. Second, she also states that she was on the civil service list when she learned that Wilson would be her supervisor. Third, plaintiff asserts that she had informed Superintendent Piazza in early 2007 that she was on the list and would appreciate an opportunity at the Vocational Assistant position for which she had previously applied. Fourth, plaintiff claims that she spoke to Popek about taking a voluntary demotion in a clerical position so as to move out of the Business Office. At the time of her resignation, plaintiff claims that Spence made no suggestions as to alternative positions that might have been available to her.
Defendants posit that plaintiff did not file a complaint with the Equal Employment Opportunity Office ("EEOO"), and note that the DOC has a formal procedure for making complaints concerning discrimination or retaliation through the EEOO. Plaintiff claims she made complaints in 1997 and 2004, wrote to Business Manager Popek, wrote to Piazza, and complained to Rapheal Chieke. Plaintiff also states that she has filed complaints with the Pennsylvania Human Relations Commisssion ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"). Plaintiff also states that she verbally complained to Spence and others.
Defendants state that Kerstetter was replaced by Kelly Park on July 15, 2007. Defendants assert that Park was one of four interviewees for the position and the only one with accounting experience. According to plaintiff, Park had no accounting experience, but only experience in the Accounting Department. Plaintiff claims that one of the other ...