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Haqq v. Pennsylvania Dep't of Public Welfare

March 23, 2010


The opinion of the court was delivered by: O'neill, J.


Plaintiff asserts four counts of discrimination against defendant, all of which arise out of plaintiff's termination from her probationary position as an income maintenance caseworker for the Pennsylvania Department of Public Welfare.*fn1 Presently before me are defendant's motion for summary judgment and plaintiff's response. For the following reasons, I will grant defendant's motion with respect to Counts IV and VI of the complaint and deny the motion in all other respects.


Plaintiff is a Muslim woman who, during the time period relevant to this case, practiced a form of Hijab (veiling) that required her to cover her whole body with the exception of her hands and her face.*fn2 On May 29, 2007, she was hired by defendant as an income maintenance caseworker. Income maintenance caseworkers are responsible for interviewing applicants for public assistance benefits to determine whether the applicant is eligible for such benefits. On May 30, 2007, plaintiff began the income maintenance standard training program which is a one year program designed to teach new employees the policies and procedures relevant to the position. During her time in the training program, plaintiff, like all new employees, was on probationary status. Approximately thirteen weeks of the program took place in a classroom. During that phase, the students worked exclusively in a "protective environment" where they were closely monitored by trainers and not permitted to work on real cases. The remainder of the training program took place in the district office where the level of supervision was more relaxed and trainees worked with real clients.

Erica McCann and Mary Harrison were two of the trainers responsible for instructing plaintiff on various components of the training program curriculum. Plaintiff claims that both women discriminated against her. The first alleged act of discrimination occurred at orientation when Harrison was describing the employee dress code to plaintiff's class. According to plaintiff, Harrison stated that head coverings were generally prohibited except for religious purposes but warned that if employees chose to wear head coverings for religious purposes they would be expected to do so consistently because some women cover their hair as a "fad." Plaintiff claims this remark was made in a "flip" tone and directed at her because she was the only person in the room wearing a head covering. Harrison admits stating "if you are wearing head cover today for religious purposes we respect it and accept it. And it's expected that it would be worn on a daily basis." She denies, however, that her remark was delivered with a flip tone.

Several days later, plaintiff was having a private discussion with McCann when McCann allegedly stated that "some people just aren't cut out for this job." Plaintiff understood that statement to be directed at her despite the fact that, at that stage, plaintiff had done no substantive work and therefore McCann had no work-related reason to think plaintiff was not fit for the position.

Plaintiff also claims that other non-Muslims received more "hands-on" and "one-on-one" training than she received. For example, she contends that while her questions were rarely answered by McCann in a timely and helpful fashion, on "at least four or five [occasions,]" several of her classmates received emails from McCann containing instructions and information not offered to plaintiff. Plaintiff's classmates also allegedly benefitted from private meetings with McCann wherein they received additional instruction and training. Likewise, according to plaintiff, McCann guided other students through the classroom lessons step-by-step but did not provide such assistance to plaintiff. McCann disputes that plaintiff received less training than other students. Indeed, she claims that plaintiff received more assistance than other students because "she had the most trouble navigating the computer system."

According to plaintiff, this disparate treatment culminated in a series of employee assessments and performance reviews authored by McCann and other trainers. First, on July 27, 2007, McCann noted in an employee assessment that plaintiff exhibited "poor performance."*fn3

She wrote "you don't understand computations[,] income limits and potential categories of eligibility. Not able to keep up with class." Under the category of "progress," McCannn noted "you don't understand categories for medical. You don't follow directions that will help you understand." With respect to plaintiff's computer skills McCann wrote "you lack an understanding of basic computer skills. Failed to follow directions on CAIREG by deselecting [line number] 03." McCann's evaluation urged plaintiff to "keep your tools folder readily available [and to] [a]sk questions and participate in class." In closing, McCann wrote "[i]mprovements need to made [sic] by 8-3-07." The evaluation was signed by McCann and by plaintiff.

The second assessment, filed by McCann three days later, reiterated many of the same concerns. Plaintiff again received an overall evaluation of "poor performance." McCann wrote "[y]ou were given a Healthy Horizon exercise to complete on 7/24/07. The exercise was not complete and you didn't understand how to complete. You did not want any assistance from supervisor." With respect to plaintiff's progress: "[y]ou are not able to understand income limits. You were using the PSA income limits instead of Healthy Horizon income limits." Going forward, plaintiff was instructed to "[use] your Desk Reference income eligibility to better understand income limits [and to] [c]omplete Healthy Horizon exercise by 8-1-07." Both McCann and plaintiff signed this evaluation.

Sometime in late July 2007,*fn4 plaintiff informed Ernestine Burnside, plaintiff's union representative, that she believed she had suffered discriminatory treatment during her employment with defendant. On July 27, 2007, McCann allegedly told plaintiff that if she refused to resign McCann would submit paperwork to have her fired and that there was no point to plaintiff completing the training because she would not pass it successfully. McCann denies that she made such statements.

On August 1, 2007, plaintiff followed up with Burnside via email. In that email, she detailed the allegedly discriminatory treatment she had received, including a description of the July 27, 2007 conversation with McCann. After the conversations with Burnside, plaintiff claims that McCann acted "very differently" toward her. For example, during a class session two days later, McCann stated in front of the class that plaintiff had been trying to "boycott" McCann but that "it was OK... [McCann] understood why.... It was because [plaintiff] couldn't do the job... but [McCann] would help [plaintiff] for as long as [plaintiff] was there." McCann denies making such statement or treating plaintiff differently after plaintiff communicated her concerns to Burnside.

The third assessment, filed by McCann on August 7, 2007, was again critical of plaintiff. This time, McCann labeled plaintiff's performance "unsatisfactory." She noted "[y]ou were not able to complete the MA workshop timely. You were behind on the MA computation pages and the [illegible] screens. You have to be able to find a policy." With respect to plaintiff's progress, McCann wrote "you were not able to find in policy the applicant recipient groups and income to be counted for spouses." Further, "[i]mprovement is needed in navigating through CIS." Finally, McCann wrote "[y]ou have to review policy and complete computation pages timely. You have to be able to accurately and timely complete cases. Improvement needed by 8-9-07 Assessment." Again, the evaluation was signed by both McCann and plaintiff.

The fourth assesment, filed by trainer Angela M. Lynch, was filed on August 8, 2007. Lynch's overall evaluation of plaintiff's work product was "improvement needed." She exhaustively detailed plaintiff's mistakes in completing that day's workshop. Among other concerns, Lynch noted "[y]ou could not process the case successfully without assistance from this facilitator." In concluding, she warned "[t]hese suggestions must be adhered to immediately, because you will be handling live cases effective [sic] your return to the district office on Monday, 8/13/07." Both Lynch and plaintiff signed the evaluation.

On August 30, 2007, McCann filed plaintiff's mid-probationary performance review. A performance review is a formal appraisal of an employee's work, which occurs twice during the first six months of an individual's probationary employment. Unlike assessments, which evaluate an employee's work on a given assignment, performance reviews assess an employee's job performance over an extended period of time. In plaintiff's performance review, she received a score of "unsatisfactory" in five of six categories: (1) job knowledge/skills; (2) work results; (3) communications; (4) initiative/problem solving; and (5) work habits. In the sixth category, interpersonal relations/equal employment opportunity, she received a grade of "satisfactory." Under "employee strengths" McCann wrote "[a]t this time [plaintiff's] individualized strengths can not be identified. Through constant monitoring and training [plaintiff's] attributes and abilities may be recognized as a contribution to the department." She also included a full page of additional commentary addressing plaintiff's performance deficiencies. The performance review was signed by McCann and plaintiff and then reviewed and signed by Deborah Eubanks.*fn5 On the form, plaintiff noted her disagreement with the rating she received and requested a conference.

The requested conference was held on September 20, 2007. McCann, Burnside, Eubanks and plaintiff were present. According to meeting notes taken by Shanti Seelal, a human resources analyst with DPW, plaintiff "acknowledged she encountered problems at the onset. However, she indicated she felt she is getting better with CIS and is capable of improving."

Plaintiff was informed that her trainers would not, at that time, recommend that she be terminated but that she must show significant improvement. She was also warned that "if her performance remain[ed] severely deficient, the next appropriate steps will be administered."

On October 25, 2007, McCann filed a second performance review of plaintiff. Notably, the rating period for that performance review ran from May 27, 2007 to November 24, 2007--so plaintiff was evaluated nearly one month before the rating period was scheduled to end. Plaintiff again received scores of "unsatisfactory" in five of the six categories. With respect to plaintiff's strengths McCann wrote "[s]trengths are still not identifiable." Again, McCann included a lengthy discussion of plaintiff's work-related deficiencies which she concluded by noting "[a]fter a thorough evaluation of your performance you have shown no significant improvement, I recommend dismissal." This performance review was signed by McCann and reviewed and signed by Eubanks. Plaintiff wrote "I refuse to sign."

On November 2, 2007, plaintiff emailed Sophiny Pek-Lilly, defendant's labor relations chief, to describe the discriminatory treatment that she felt she had suffered. In that email, plaintiff informed Pek-Lilly that she wished to file an "official charge of discrimination." Pek-Lilly and plaintiff met on November 16, 2007 to discuss plaintiff's allegations. Thereafter, plaintiff provided Pek-Lilly with a written statement of everything discussed at the meeting. In that statement, plaintiff alleged for the first time that Harrison had discriminated against her. Pek-Lilly met with plaintiff again several days later to discuss the new allegations. On November 21, 2007, Pek-Lilly wrote a memorandum to file detailing plaintiff's allegations but finding no evidence of discrimination based on either age or religion. "It is clear that [plaintiff] is having difficulty grasping the work," Pek-Lilly wrote, "[plaintiff] acknowledges this herself and has made few arguments to dispute the statements regarding her performance." That same day, plaintiff was terminated from her position.

Plaintiff appealed her termination to the Pennsylvania State Civil Service Commission. Hearings on her claim were held May 2, 2008 and June 25, 2008. On December 9, 2008, the Commission affirmed her dismissal, finding that plaintiff was terminated because she was unable to perform a critical duty required of her position. On January 6, 2009, plaintiff filed an eight-count complaint in this Court. She alleged that defendant discriminated against her because of her age and her religion. On April 15, 2009, I granted defendant's unopposed motion to dismiss plaintiff's claims of age discrimination. Defendant now moves for summary judgment with respect to the remainder of plaintiff's claims.


Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is proper "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." An issue of material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment has the burden of demonstrating that there are no genuine issues of material fact. Id. at 322-23. If the moving party sustains the burden, the nonmoving party must set forth facts demonstrating the existence of a genuine issue for trial. See Anderson, 477 U.S. at 255.

When a properly supported motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The adverse party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). However, the "existence of disputed issues of material fact should be ascertained by ...

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