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Wendy Mccartney v. Pennsylvania State Police

July 29, 2011


The opinion of the court was delivered by: (Judge Munley)


Before the court for disposition are the plaintiff's objections to the magistrate judge's report and recommendation which proposes that the defendants' motion for summary judgment be granted and that the plaintiff's complaint be dismissed. The objections have been briefed and are ripe for disposition.


This case involves claims against individual officers of the Pennsylvania State Police ("PSP") and the PSP itself, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and, via 42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment and a theory of retaliation under the First Amendment.

(A) Facts of the case

For the most part, the events relevant to this case took place between April 2005 and December 2008, when Plaintiff Wendy McCartney ("McCartney") worked at the Altoona District Office of the Pennsylvania Bureau of Liquor Control and Enforcement ("BLCE"), a division of the PSP.

(1) The parties

(a) Wendy McCartney

Plaintiff Wendy McCartney ("McCartney") began working for the PSP as a Liquor Enforcement Officer (LEO) in the Philadelphia office of the BLCE. (Doc. 37, ¶ 11; Doc. 50, ¶ 11). She transferred to the Pittsburgh office in 2003. (Doc. 37, ¶ 14; Doc. 50, ¶ 14). While in Pittsburgh, McCartney worked with Defendant Dennis Smolko ("Smolko"). (Doc. 37, ¶ 15; Doc. 50, ¶ 15).

On or about April 25, 2005, McCartney transferred from the Pittsburgh District Office to the Altoona District Office of the BLCE. (Doc. 37, ¶ 22; Doc. 50, ¶ 22). Shortly after she moved to Altoona, she was in a car accident and went on medical leave "for a considerable part of 2005." (McCartney Dep. 39:13--18, May 19, 2010, Doc. 38-2, at 32). Records indicate that she had four extended periods of absence: April 28, 2005 to July 22, 2005 (62 days); September 1, 2005 to January 3, 2006 (89 days); September 24, 2007 to December 28, 2007 (70 days); and May 5, 2008 to July 11, 2008 (50 days). (McCartney Dep. 181:4--186:14, Doc. 38-3, at 14--19; Overview of Absences for Wendy R. McCartney, Doc. 38-6, at 25--34). At some point, McCartney requested an Americans with Disabilities Act ("ADA") accommodation, but her request was denied. (McCartney Dep. 16:17--20, Doc. 38-2, at 16).

(b) Daniel Hawk

Defendant Daniel Hawk ("Hawk") was a sergeant in the PSP and was the District Office Commander ("DOC") in the Altoona District from February 13, 2006, until his retirement on January 12, 2007. (Hawk Decl. ¶ 1, Aug. 8, 2010, Doc. 38-6, at 10; McCartney Dep. 96:21--97:5, Doc. 38-2, at 59--60; id. 134:9--14, Doc. 38-2, at 89). According to Hawk, upon transferring to Altoona, he had a meeting with all office staff, including McCartney, and told staff that profanity would not be tolerated. (Hawk Decl. ¶ 4, Doc. 38-6, 2 at 11).

(c) Dennis Smolko

Defendant Dennis Smolko ("Smolko") was an Enforcement Officer 3 ("EO3") with the BLCE and has held that position until the present time. (Smolko Decl. ¶ 1, Aug. 25, 2010, Doc. 38-5, at 60). Smolko stated that he was McCartney's direct supervisor from March 2004 to July 2004 in the Pittsburgh District Office. (Id.¶ 2). McCartney states that she has no memory of him being her supervisor. (McCartney Dep. 25:7--16, Doc. 48-2, at 6).

(d) Earl Killion

Defendant Earl Killion ("Killion") was an LEO for the PSP BLCE who worked at the Altoona office. (Doc. 37, ¶ 33; Doc. 50, ¶ 33). For a time in 2006 and 2007, he was an Acting EO3. (Id.) He has worked at the Altoona office from 1996 until the present. (Killion Decl. ¶ 1, Aug. 2010, 4 Doc. 38-6, at 37).

(e) Charles Strobert

Defendant Charles Strobert ("Strobert") was a sergeant in the PSP. (Strobert Decl. ¶ 1, Aug. 2010, Doc. 38-6, at 59). Until January 8, 2006, he was the District Office Commander ("DOC") in the Altoona district; he was then transferred to the Lewistown PSP barracks.*fn2 (Id.)

(f) Thomas Butler

Defendant Thomas Butler ("Butler") was a captain with the PSP in the BLCE and was then the Director of Operations. (Butler Decl. ¶ 1, Aug. 25, 2010, Doc. 38-7, at 7; McCartney Dep. 380:7--15, Doc. 38-4, at 69). From January to March 2009, Butler worked in Harrisburg as the Director of Administration for the BLCE. (Id.) While there, he was also the Equal Employment Opportunity ("EEO") Liaison.*fn3 (Id.)

(g) Patrick B. Gebhart

Defendant Patrick B. Gebhart ("Gebhart") was a captain in the PSP BLCE and was the Director of Administration for the BLCE. (Gebhart Decl. ¶¶ 1--2, Aug. 2010, Doc. 38-8, at 7--8). He began with BLCE in March 2007 as Director of Operations. (Id.) He worked in Harrisburg at all times he was with the BLCE. (Id.; McCartney Dep. 403:11--13, Doc. 38-4, at 83).

(h) Thomas Mannion*fn4

Thomas Mannion was an EO3 with the BLCE. (McCartney Dep. 114:2-3; Doc. 38-2, at 71) He was a supervisor to McCartney when McCartney transferred to Altoona. (McCartney Dep. 73:21-25; Doc. 48-2, at 19). McCartney had heard from a female officer in Pittsburgh that Mannion had picked on her. (Id. 75:1 to 76:1). Mannion used the word "bitch" frequently, and used it in reference to a female secretary once in McCartney's presence. (Id. 183:24 to 184:14). Mannion told McCartney that he had driven to her house and pulled into her driveway and turned around. (Id. 77:11 to 78:24; 183:10-12). Mannion told McCartney that he had been watching her from a window as she walked from the parking lot. (Id. 183:4-9). Mannion told her that a judge would like her because she was a woman. (Id. 183:12-23).

(2) The February 2006 EEO complaint

On February 9, 2006, McCartney submitted an internal EEO complaint to Butler. (Doc. 37, ¶ 43; Doc. 50, ¶ 43; Wendy R. Macknair*fn5, Complaint Regarding Hostile Work Environment (Feb. 9, 2006), Doc. 38-8, at 16 [hereinafter "EEO Complaint"]). The complaint alleged that McCartney was subject to a hostile work environment and disparate treatment (Doc. 37, ¶ 44; Doc. 50, ¶ 44), and included numerous allegations against Mannion, Smolko, Strobert, and Killion, as well as allegations that a number of officers were using offensive, profane language. (SeeDoc. 37, ¶¶ 46a--77; Doc. 50, ¶¶ 46a--77).

(a) Allegations against Mannion

The EEO complaint alleges that in May 2005, Mannion came to her residence uninvited, pulling into her driveway and turning around; and in August 2005, Mannion watched McCartney in the parking lot and then told her he had done so, and said that an administrative law judge would like her because she is female. (EEO Compl. ¶¶ 8--10, Doc. 38-8, at 17--18). McCartney also believed that there "may be a potential for [Mannion] to create a hostile work environment" because another female employee said that Mannion "mistreated" her and because of a male LEO who, in 2002, was "constantly complaining about how [Mannion] mistreated him." (Doc. 37, ¶ 45a; Doc. 50, ¶ 45a; EEO Complaint ¶¶ 4--6, Doc. 38-8, at 17).

(b) Allegations against Smolko

In August 2005, Smolko told McCartney that the squad room was a "big male dormitory" and in the past, foul language was used and "farting occurred." (Doc. 37, ¶ 46a; Doc. 50, ¶ 46a; EEO Compl. ¶ 12, Doc. 38-8, at 18). He told her that he and the other male officers felt "that since there is a 'girl' around, they can't do that and have to watch what they say and do around [her]." (Doc. 37, ¶ 46b; Doc. 50, ¶ 46b; EEO Compl. ¶ 12, Doc. 38-8, at 18).

On January 10, 2006, Smolko convened a meeting in the DOC's office and invited the male LEOs. (EEO Complaint ¶ 23, Doc. 38-8, at 20--21). He told "these male [LEOs] (Burn's [sic], Butler, maybe Salmon, not Coble or Bell, etc.)" about certain administrative changes being made. (Id.) McCartney was not invited to the meeting. (Id.)

On January 18, 2006, Smolko invited Burns and other LEOs to a sports bar to watch a football game on Sunday, but he did not invite McCartney, even though she expressed interest. (Doc. 37, ¶ 46d; Doc. 50, ¶ 46d; EEO Complaint ¶ 24, Doc. 38-8, at 21). McCartney did not ask to be invited to the sports bar and did not know whether they actually went to the sports bar. (McCartney Dep. 217:5--10, Doc. 38-3, at 43).

During an office meeting also on January 18, Smolko stated that the "girls," referring to the secretaries, wanted to say a few things. (Doc. 37, ¶ 46e; Doc. 50, ¶ 46e; EEO Complaint ¶ 25, Doc. 38-8, at 21). McCartney was bothered by women being referred to as girls. (McCartney Dep. 51:14 to 52:13, Doc. 48-6, at 13). According to McCartney, one of the secretaries objected to being referred to as a girl and indicated that she wanted to be referred to as a lady. (Id.) According to McCartney, this was only one occasion of multiple ocassions when Smolko referred to women as girls. (McCartney Dep. Day 2 177:4-11, Doc. 48-6, at 45).

During the same meeting, Smolko stated that cell phones were not to be used at the office; the next day, another LEO, Jeffrey Butler-a different person from Captain Butler-used his cell phone in the office, which Smolko witnessed but did not comment on. (Doc. 37, ¶ 46f; Doc. 50, ¶ 46f; EEO Compl. ¶ 27, Doc. 38-8, at 21--22). Butler was calling Bell, who was on the road working and needed assistance with directions. (McCartney Dep. 219:3--10, 221:1--3, Doc. 38-3, at 45, 47). McCartney admits that personal cell-phone usage was "excessive," as Smolko said it was. (Smolko Decl. ¶ 6, Doc. 38-5, at 61; Doc. 50, ¶ 62). McCartney states that she was challenged about taking a personal call on her cell phone during her break-time, but never saw the policy enforced against male officers. (McCartney Dep. 132:13 to 135:12, Doc. 48-2, at 33-34). McCartney cannot directly prove that male officers were never reprimanded for using their cell phones at work but makes her inference from the fact that she never saw male officers counseled about cell phone use the way she was and from the fact that male officers continued to use their cell phones throughout the day around the time she was counseled. (Id. 135:2-12, Doc. 48-2, at 34).

On January 23, 2006, McCartney was brought into Smolko's office and on the wall she saw a Polaroid photo of a man in a penis costume. (Doc. 37, ¶ 46g; Doc. 50, ¶ 46g; EEO Complaint ¶ 29, Doc. 38-8, at 22). McCartney submitted a copy of the polaroid to Captain Butler. (Doc. 37, ¶ 49; Doc. 50, ¶ 49). McCartney never saw any sexually inappropriate photographs in the workplace after Butler's investigation. (McCartney Dep. 129:23--25, Doc. 38-2, at 85; id.229:16--230:3, Doc. 38-3, at 55--56).

At a staff meeting on January 30, 2006, Smolko reassigned work vehicles to the LEOs. (EEO Compl. ¶ 34, Doc. 38-8, at 23). After being offered a choice between a Malibu and a Grand Am, McCartney got the Malibu, observing: "It appears to me that the males believe that having a Malibu is a big joke. I guess Wendy gets the joke of a car over the males getting the better cars." (Id.)

On February 1, 2006, Smolko said the word "fuck" in the workplace. (EEO Compl. ¶ 40, Doc. 38-8, at 24).

(c) Allegations against Strobert

On August 15, 2005, Strobert was discussing Deputy Commissioner Transue-- a female state employee who was fired and then rehired as the Deputy of Special Projects in Philadelphia-- after having sent out an email with two attached news articles about Transue. (EEO Compl. ¶ 13, Doc. 38-8, at 18). Strobert commented: "I'm gonna get fired and be rehired as a Commissioner. That's right; I'm not a female. I can't do that." (Id.)

On October 7, 2005, Strobert sent an email to various recipients, including McCartney, attached to which was a scan of a 1955 Good Housekeeping Magazine article entitled "The Good Wife's Guide." (EEO Compl. ¶ 14--15, Doc. 38-8, at 18--19; Doc. 37, ¶ 64b; Doc. 50, ¶ 64b). The one-page article can be characterized as an antiquated perspective on marriage, offering eighteen specific recommendations for how a woman can make her husband happy, concluding "[d]on't ask him questions about his actions or question his judgment or integrity. Remember, he is the master of the house and as such will always exercise his will with fairness and truthfulness. You have no right to question him" and that "[a] good wife always knows her place." (Oct. 7, 2005 Email Attachment, Doc. 38-8, at 30). Strobert commented: "Wow, what a difference 50 years makes. Hurray for liberation movements." (Oct. 7, 2005 Email, Doc. 38-8, at 29). McCartney interpreted his comment as sarcastic. (Id.)

On December 6, 2005, during a period in which McCartney was on leave because of her car accident, she came into work to drop something off. (EEO Compl. ¶ 18, Doc. 38-8, at 19; Doc. 37, ¶ 64c; Doc. 50, ¶ 64c). While she was there, Strobert told her that he did not invite her to a Christmas party or the farewell party for an Officer Siko because "some of the guys felt uncomfortable" with it, and "the guys didn't want [him] to invite [her]." (Id.) McCartney could not say for sure whether other women were invited. (McCartney Dep. 147:4--10, Doc. 38-2, at 100; id. 196:9--21, Doc. 38-3, at 28; id.199:5--7, Doc. 38-3, at 31).

During the same office visit, McCartney wrote, Strobert tried to explain "why [Mannion] is the way he is. He referred to [Mannion] as the 'Alpha Male' in describing him. I felt as if this was Sgt. Strobert's way of [telling me] that [Mannion] was attempting to be domineering over me and that I was to be submissive to him." (EEO Compl. ¶ 20, Doc. 38-8, at 20; Doc. 37, ¶ 64d; Doc. 50, ¶ 64d).

On January 8, 2006, McCartney sent Strobert a squad-change request, which she copied to Lt. Martin; the next day, the email came back to her from Strobert as deleted and not read. (EEO Compl. ¶ 21, Doc. 38-8, at 20; Doc. 37, ¶ 64e; Doc. 50, ¶ 64e). On the day that McCartney sent her request, Strobert was transferred to a different barracks. (McCartney Dep. 212:11--15, Doc. 38-3, at 38). By January 9, the day that Strobert deleted the email, he was reassigned to the Lewistown PSP. (Id.213:3--11, Doc. 38-3, at 39; id.241:16--20, Doc. 38- 3, at 61).

On January 31, 2006, Strobert returned to visit the Altoona office, and was "out by the secretaries' area telling stories about how 'females are less courteous than males.'" (EEO Compl. ¶ 38, Doc. 38-8, at 24; Doc. 37, ¶ 64f; Doc. 50, ¶ 64f). McCartney believed that Strobert came back-- on four occasions-- to the Altoona district office to upset her and harass her by saying things about women within earshot. (McCartney Dep. Day 2 75:1 to 76:25, 162:21 to 169:15, Doc. 48-6, at 19, 41-43). According to McCartney, Strobert would say he was stopping to use the computer but that Strobert could have used the computer at his state police barracks. (Id.)

(d) Allegations against Killion

On January 27, 2006, Killion asked McCartney to say goodbye when leaving the office. (EEO Compl. ¶ 30, Doc. 38-8, at 22). Killion sent McCartney an email on January 30, 2006, explaining that his request was in reference to a day the previous week when she had taken personal leave without making it known that she was leaving. (Id.¶ 31, Doc. 38-8, at 22--23). According to Killion, the policy had been "in place for years at the Altoona office and was common courtesy." (Killion Decl. ¶ 8, Doc. 38-6, at 38). According to Smolko, clerical staff asked Smolko to encourage LEOs to let clerical staff know when they were coming and going, so he did. (Smolko Decl. ¶ 10, Doc. 38-5, at 62). Smolko stated that he was not singling McCartney out. (Id.) McCartney acknowledged that Smolko brought up the "say goodbye" policy at an office meeting a few days after her conversation with Killion. (McCartney Dep. 243:9--19, Doc. 38-3, at 62). McCartney believed this meeting was meant to cover up the fact that she had been singled out.

(e) Use of profane language

McCartney also complained about the use of profanity, generally:

What's up with all the "F" words? Smolko isn't the only one here using such nasty profanity. I'm sitting at my cubicle and all of a sudden I'm hearing the "F" word from somewhere across the squad room. It is my understanding that conduct that has the purpose or effect of creating an offensive work environment is not tolerated. This "F" word has no purpose and is offensive to me. I know I may hear this in the bars, but in the office, personnel should not be intoxicated and act professionally. (EEO Compl. ¶ 40, Doc. 38-8, at 24). McCartney clarified in her depositions that this profanity was not directed at her on these occasions and were not used in a sexual context. (McCartney Dep. 386:6--17, 387:15--17, Doc. 38-4, at 75, 76).

(f) Butler's investigation and its outcome

As EEO Liaison, Butler's job was to investigate claims of discrimination and harassment filed by BLCE employees. (Bulter Decl. ¶ 1, Doc. 38-7, at 7). He interviewed people who might have knowledge of the events in question and reviewed relevant documents. (Id.) After completing an investigation, Butler would submit his findings to the Director of the Department EEO Office. (Id.) During the time that Butler was EEO Liaison, the Director was Lt. M.L. Henry. (Id.) Lieutenant Henry was responsible for determining whether any violations of PSP policies regarding discrimination had actually occurred, and he would direct the appropriate response. (Id.)

On February 10, 2006, Butler informed McCartney that he would conduct an investigation into the allegations of her complaint, which he did. (Butler Decl. ¶ 2, Doc. 38-7, at 8; McCartney Dep. 79:23--25, Doc. 38-2, at 48). After the investigation, Butler submitted the information he had gathered to Lt. Henry, Director of the PSP EEO Office. (Butler Decl. ¶ 7, Doc. 38-7, at 9).

Lieutenant Henry concluded that no discrimination or harassment had occurred, but nonetheless made several recommendations based on "inappropriate behavior" that he identified. (Doc. 38- 7, at 59-60 ¶¶ 3--5). Butler counseled Smolko and reviewed PSP's sexual-harassment policy with him; Strobert's chain of command counseled him for his conduct. (Butler Decl. ¶ 8, Doc. 38-7, at 9; Doc. 38-7, at 62--65; Smolko Decl. ¶ 11, Doc. 38-5, at 63). McCartney recalled Smolko receiving a written reprimand. (McCartney Dep. 97:21-98:2 (Doc. 48-2)).

McCartney was notified of the outcome of the investigation on April 9, 2006. (Doc. 37, ¶ 87; Doc. 50, ¶ 87). She was not satisfied with the outcome and was informed that she could file a complaint with the Pennsylvania Human Resources ...

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