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Moussa v. Pennsylvania Dep't of Public Welfare

March 31, 2010

SAMIR MOUSSA, PLAINTIFF,
v.
PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE AND STACY GEYER DEFENDANTS.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.

MEMORANDUM OPINION

The Plaintiff, Samir Moussa ("Plaintiff"), commenced the instant action against Defendants, Pennsylvania Department of Public Welfare ("Defendant" or "DPW"), and Stacy Geyer ("Geyer"), claiming that he was the victim of employment discrimination based on his race and national origin in violation of Title VII and/or in retaliation for a previous lawsuit he had filed against the DPW. Specifically, the Title VII claim alleging race/national origin discrimination is asserted against DPW (Count II). Claims for race discrimination pursuant to 42 U.S.C. § 1981 (Count III) and Equal Protection and retaliation claims pursuant to 42 U.S.C. § 1983 (Counts IV and V) are asserted against Geyer. Both Defendants have moved for summary judgment and the matter is now fully briefed and ripe for disposition.*fn1 This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND

On August 4, 2005, Colleen Dahl ("Dahl"), a physical therapist at the Polk Center, telephoned her supervisor, Alan Petrazzi ("Petrazzi"), and reported that she was being sexually harassed by the Plaintiff. Def. Ex. 4. Petrazzi in turn notified Shigeyo Taylor ("Taylor"), the Director of Clinical Services. Def. Ex. 4; Def. Ex. 5. Dahl subsequently met with Petrazzi, Taylor and Vicki Myers ("Myers"), Human Resource Analyst and Equal Opportunity Liaison for Polk Center, and reported that the Plaintiff had attempted to kiss her in his office that morning.

Def. Ex. 4; Def. Ex. 5. Dahl also reported that the Plaintiff had made inappropriate sexual comments to her one year prior thereto and had hugged and kissed her in May 2005. Def. Ex. 5; Def. Ex. 59. Taylor observed that Dahl was upset and crying, and noted that she was afraid of the Plaintiff. Def. Ex. 5.

Dahl also filed an Equal Employment Opportunity Discrimination Complaint with DPW on the same date, setting forth her allegations in detail. Def. Ex. 6. The entire Complaint is set forth verbatim below:

At approx. 9:15 am on Thurs., Aug. 4th, Dr. Moussa stopped me in one of the hallways in Meadowside and said to me that he needed to meet with me at 9:30 am in his office. I wasn't sure of it was work related or not. At approx. 9:40 am, I went to his office and knocked on the doorframe of his office. I asked Dr. if the meeting was work related and he replied, "yes." He removed some papers from a pink colored recliner in his office and told me to have a seat. He then sat at his office desk chair by his desk. He started out by asking casual questions about if I was coaching soccer and if my kids were playing soccer. I replied to his questions. He then made a comment to the effect of that I was straining our relationship since I had been ignoring/avoiding him. (I can't recall his exact words but he was insinuating that he had a crush on me/liked me more than just a friend) and this disgusted me as we have no relationship besides a working relationship. At some point then he stood up and walked towards me in the recliner. I stood up and as he got closer to me, I stepped back into the corner (right hand corner of his office all the way in the back and to the right of the recliner). He continued to approach me and was right in my face. I began to turn away from him and I was turning toward the corner, he put his arms around my waist. He still had his arms around me and he was pulling me toward him and he was trying to pull me around to facing him. I tried pulling away and he tried to kiss me as I kept trying to turn away, but he did kiss my right cheek. My hair was drapped over my cheek. I told him "No" repeatedly while he had a hold of me and to not do it. I told him to leave me alone. He let go and then grabbed me again while I was facing the corner and I pulled away telling him no again. He then let go of me. He then said something about how could I do this to him, and he didn't know how he could handle it. I told him that he was married and I was happily married. He then asked me "just one?" and I told him again no. I believe he meant that he wanted to kiss me. He then went back to his office chair and sat back down. He then said something again about he didn't know how he could handle it. I don't recall if I replied or not. I did then tell him several times, that he needed to stop as he was going to ruin our work and friend relationship. I was scared and just wanted out of his office. He next went on to ask me about an individual's upper extremity brace and asked if I would go look at him with him. I think I then sat back down on the edge of the recliner seat. I told him I would go look at the brace with him as the O.T. wasn't currently in the building. On the way out of the office he made a comment to me that he really needed to do something about the 2 acne spots on my face. I waved my arm at him as to "shoe" him away and then walked out of his office and he walked out also. As we were walking, he told me about in Egypt you can have 4 wives. He then asked what state is it that you can do that here (in the U.S.). I replied "Utah." He then said "we" should go there and I told him, no, just he should go there. We then went to the cottage and looked at the brace without any incident. When he was done adjusting the brace and looking at her arm, he went to the chart rack to get a chart and I went to use the phone to respond to a page I received while we were looking at the brace. I called Marty, the Adaptive Equip. tech who had paged me. He said he could meet right then about an individual's w/c and I told him I would contact Amy, the OT to see if she could meet then also. Amy said she could meet and I called Marty back and told him we could meet at that time. Since Marty was coming from Walker Hall and Amy from Terrace, I decided to go do a treatment in cottage A2, Meadowside. I was very upset about the incident earlier and had cried some, but wiped away my tears before entering cottage A2. When I walked into cottage A2, Dee, an RSA, looked at me and said "what's wrong." I replied, "nothing" as I didn't want to talk about what happened. She replied back that she could tell something was wrong. I then went and completed my treatment and then headed to cottage A1 and Amy was sitting at the desk waiting for me. I was still very upset and felt that I was going to start crying again. I asked Amy to come with me to the cottage bathroom and I told her what happened earlier with Dr. Moussa. Vicki Johnson, RSW, later walked by the bathroom and stopped to talk. After a minute of causal talk, Amy and I walked back into the cottage and met with Marty to do a wheelchair assessment. During the assessment, Marty left to go get the digital camera. While he was gone, I talked more to Amy about what had happened. We were in the first bedroom area to the left as you walk in Meadowside A1 with the curtain closed. I began to cry again and was crying while we were talking. Marty later returned and saw me crying. I walked out to the restroom to get a towel to wipe away my tears and returned to complete our assessment. After we completed the assessment on the cottage, Amy, Marty and I went down to Meadowside P.T. dept. and downloaded the pictures that we had previously taken and discusses (sic) some options and then called over our P.T. Aide, Sue Ruhlman to discuss the options. After our discussion was completed, Amy and Marty left and Sue returned to her desk across the room. I then picked up the phone to call Alan, my supervisor, around 11:30-11:40 am to advise him of the incident that had occurred earlier in the morning.

I wanted to report this as I feel that I have been violated and can not trust Dr. Moussa. He has no right to touch me nor to make me believe that he needs to meet with me about something work related and then make advances at me. He had an incident before (see information below), but I hoped it would be isolated, however, after what happened this morning, I am disgusted, hurt and don't want it to happen to me again or anyone else.

Sometime, during the week...week and a half before Memorial Day Weekend 2005, Dr. Moussa had stopped me and asked me to stop by his office as he wanted me to meet with him and he had something for me. When I approached his office door, he came to the door way and came right up to me without warning and put his arms out and then put them around me and hugged me, he then attempted to kiss me and I turned away trying to get away from him and he kissed me on the cheek as I was turning away from him. I told him I didn't know how his wife could manage to deal with him (his behavior). He then told me that I needed to start signing in/out of work at his office and I replied sarcastically, "yeah right." He then gave me a cup from one of the drug reps that he had received. I left his office and took the cup with me. I did not report this to my supervisor as I was hoping it was just an isolated incident and if I ignored Dr. Moussa, he would get the hint to leave me alone. I did however, mention this incident to Amy Cunningham, Marty Stoops, and Rob McDonough, co-workers of mine.

There were several other occasions, when I would see the dr. (sic) in the hallway and he would tell me that I was to sign in/out of work at his office. I told him numerous times, that Alan is my boss and I sign in/out of work at Center where I am supposed to. Dr. Moussa had stopped me at least 2 other times between the end of May and today, Aug. 4th requesting me to meet him at his office and I did not go as I was afraid of what he might do. I ignored his meeting requests. I would go another direction if I heard him in the building so I could avoid him. If I would see him in the hallway, I would ignore him, tell him I sign in/out at center or wave my arm at him to "shoe" him away if he said anything to me such as requesting me to sign in/out a[t] his office, telling me I looked nice, pointing out acne on my face or asking when I was going to meet with him. (things that were not work related.)

Def. Ex. 6.

On August 5, 2005, the Plaintiff completed an Employee Relations Witness Statement as part of an interview conducted by Myers and Jeff Barnes ("Barnes"), Human Resource Analyst. Def. Ex. 16; Def. Ex. 17, Moussa Dep. p. 72. That statement provided in relevant part:

[O]n 8-4-05 while doing 90 day physical examination in Cottage D at about 8:00 AM, I met Colleen Dahl (PT) in Cottage D and I told [her] we need to meet to discuss S.B. fracture and her crying and we check brace. While I was in my office at about 9:30 to 9:45 I was entering the 90 days finding in my computer, Colleen came to my office so I removed chart from the [r]ecliner, so she can sit in the recliner, then we discussed the cause of S.B. crying and we need to remove the brace to make sure that there is no skin breakdown and I ordered x-ray to the fractured arm. After that we talked socially for 2-3 minutes about coaching in Meadville Soccer Team which explains why her van was so muddy, and I complimented her about her [n]atural [b]eauty without any makeup however her response was complete silence which made [me] realize that she did not appreciate the compliments. She stood up ready to [leave] and she stated that Sherry (OT) was not available, because she is the one to deal with upper extremity. So I told her that I should ... wait for Sherry to change the brace, however Colleen told me that she had time and she will help me checking the [b]race, so we left my office and I prompted her with my left arm on her right shoulder and we went to Cottage D1. There is no further physical contact other than [t]apping her on the back of her right shoulder with my left hand. The only recent physical contact I had with Colleen was when I returned from Geriatric Conference I asked her in humorous way if she missed me and I spread my arms and we did have brief hug in the [h]allway ([a]bout May or April 2005), near the main [d]ispensary in Meadowside. Also I gave her some pens and cup which I brought from the Medical Conference as I gave to all the nurses and OMRPs.

Def. Ex. 16.

At the conclusion of this interview, Barnes informed the Plaintiff that he was suspended without pay pending further investigation. Def. Ex. 18, Moussa Dep. pp. 104-105. This suspension was subsequently confirmed in writing by letter dated August 12, 2005 signed by Terry Lee Fossati ("Fossati"), Human Resource Officer for Polk Center. Def. Ex. 19.

Ken Krall ("Krall"), an employee from the Defendant's Bureau of Equal Opportunity ("BEO"), obtained a second statement from Dahl on August 15, 2005. Def. Ex. 20; Pl. Ex. 3, Hanwell Dep. p. 41. Dahl reiterated her allegations and also informed Krall that she had filed a complaint with the Pennsylvania State Police. Def. Ex. 20. Krall obtained a second statement from the Plaintiff, who again denied Dahl's allegations. Plaintiff suggested that Dahl had fabricated the allegations because she thought he had "money" and could "sue [him] for harassment," or she was "bragging about having a physician attracted to her." Def. Ex. 21.

As part of its investigation into Dahl's allegations, a number of DPW employees were interviewed relative to Dahl's alleged encounter with the Plaintiff on August 4, 2005. Specifically, Deirdre Williams ("Williams"), a Residential Services Aid, recalled asking Dahl "what was wrong" when she entered Cottage A2 because in Williams' view Dahl did not appear to be "feeling good." Def. Ex. 7. Similarly, Vicki Johnson ("Johnson"), a Residential Services worker, "thought [Dahl] was upset about something" because she was "wiping her eyes." Def. Ex. 9. Marty Stoops ("Stoops"), an Adaptive Equipment Technician, recalled that Dahl was "crying." Def. Ex. 10. Amy Korinko ("Korinko"), a Licensed Occupational Therapist, reported that Dahl informed her that the Plaintiff had attempted to kiss her in his office and that when she made the comment Dahl was "very upset, pale and crying." Def. Ex. 8. Robert McDonough ("McDonough"), a Physical Therapy Assistant, stated that although he was unaware of the incident on August 4, 2005, Dahl had informed him that the Plaintiff made inappropriate comments to her on four or five occasions in the past and had tried to hug her two or three times. Def. Ex. 14.

The BEO prepared an Investigative Report summarizing the results of its investigation up to that point:

This seems to be a case of the Complainant's word versus the Respondent's as to the alleged sexual harassment since there are no witnesses to the incident. The Complainant, however, seemed to be credible, appears to have no reason to lie, and when asked how she would like this resolved, indicated that she just didn't want to ever be around Dr. Moussa again and did not want this to happen to anyone else. (See Exhibit A) Additionally, she discussed the incident with several co-workers and all related a consistent account of the incident as well as a consistent description of the Complainant's demeanor on August 4th. Also, the Complainant, in her statement, indicated that she had filed a complaint with the State Police on Monday, August 8, 2005.

Dr. Moussa, while denying the allegations, also appeared credible. However, he did not give a very plausible explanation as to why he thought the Complainant would have a reason to make such allegations. (See Exhibit B).

Def. Ex. 24.

On September 14, 2005, Merry-Grace Majors, the BEO Director, forwarded a memorandum to Kevin Casey, Deputy Secretary for Mental Retardation and Joseph Tatarek ("Tatarek"), Acting Facility Director at Polk Center, indicating that based upon information obtained during the investigation, there was sufficient evidence to substantiate a violation of the Commonwealth's policy on sexual harassment.*fn2 Def. Ex. 25; Def. Ex. 26.

Michael Hanwell ("Hanwell"), a Supervisory Analyst with the Bureau of Human Resources, Labor Relations, reviewed the BEO Investigative Report, as well as the witness statements collected by Barnes and Krall. Pl. Ex. 3, Hanwell Dep. pp. 44-45. He recommended that further investigation be conducted. Pl. Ex. 3, Hanwell Dep. pp. 44-45. Additional interviews were conducted, and Korinko was reinterviewed and reported that Dahl had also informed her of an incident that had occurred before Memorial Day, 2005, wherein the Plaintiff had attempted to kiss her. Def. Ex. 12. McDonough reported that Dahl informed him that the Plaintiff had made the following comments to her: "Why don't you come to my office when I want you to;" "you know where I come from we're allowed to have more than one wife;" and "what would it take for us to be together." Def. Ex. 15. In supplemental interviews, Dahl was asked to provide the specifics of the alleged inappropriate sexual comments made to her by the Plaintiff. Def. Ex. 29; Def. Ex. 35. Dahl stated that the Plaintiff had asked her: "Do you know what a big dicked man has for breakfast?" Def. Ex. 29; Def. Ex. 35.

As the investigation proceeded, allegations of inappropriate conduct by the Plaintiff against other women came to light. Barnes interviewed Ellen Leakes ("Leakes"), a former DPW employee, on November 28, 2005 and December 7, 2005, who informed him that the Plaintiff had physically and verbally harassed her on several occasions. Def. Ex. 46. Specifically, Leakes stated that the Plaintiff made comments such as "I think no means maybe" and "I can give you three nights a week." Def. Ex. 46. Leakes further relayed that on one occasion, while driving back to Polk Center, the Plaintiff stated that he wanted to have sex with her in the car, but she declined his advance. Def. Ex. 46. On another occasion, the Plaintiff allegedly "slammed her against the wall" of her office and "had his tongue down her throat" while attempting to remove her clothing. Def. Ex. 46. Leakes claimed that the altercation left her bruised. Def. Ex. 46.

Leakes also reported that she declined the Plaintiff's request to have lunch with her shortly prior to her retirement. Def. Ex. 46. Rindy Taylor ("Taylor"), another DPW employee, stated that she overheard Leakes' end of the telephone conversation and questioned Leakes as to why she declined the luncheon invitation. Def. Ex. 47. According to Taylor, Leakes informed her that she had declined the Plaintiff's invitation because he was unable to "keep his hands to himself." Def. Ex. 47. Leakes claimed she did not report the Plaintiff's conduct at that time because she was concerned for her safety and was "fearful" of how she would be treated by the "system." Def. Ex. 46. She further claimed her decision to retire was based, in part, on the Plaintiff's conduct. Def. Ex. 46.

Barnes and Fossati also interviewed Michael Kudylak ("Kudylak"), the acting Director of Unit Managers. Def. Ex. 50. Kudylak informed Barnes and Fossati that he was aware of the incident that had occurred between the Plaintiff and Leakes in her office at the time and that he further concluded that it was "unsolicited" and "unwanted." Def. Ex. 50. According to Kudylak, Leakes did not want to report the incident because she was embarrassed and feared retaliation from the Plaintiff. Def. Ex. ...


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