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Donna Kovaleski v. County of Lackawanna and County of Lackawanna

December 15, 2011

DONNA KOVALESKI, PLAINTIFF
v.
COUNTY OF LACKAWANNA AND COUNTY OF LACKAWANNA TRANSPORTATION SYSTEM (COLTS), DEFENDANTS



The opinion of the court was delivered by: Mannion, M.J.

MEMORANDUM AND ORDER*fn1

Pending before the court are (1) a motion for summary judgment filed on behalf of the County of Lackawanna, (hereinafter "the County"), (Doc. No. 41), and (2) a motion for summary judgment filed on behalf of the defendant County of Lackawanna Transportation System, (hereinafter "COLTS"), (Doc. No. 48).

I. PROCEDURAL HISTORY

By way of relevant background, the plaintiff filed the instant action on December 8, 2008, in which she alleges employment discrimination and retaliation due to gender in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§2000e, et seq., as well as the Pennsylvania Human Relations Act, (hereinafter "PHRA"), 43 P.S. §§951-963. (Doc. No. 1). On March 16, 2009, the County filed an answer with affirmative defenses. (Doc. No. 10). COLTS filed an answer with affirmative defenses on March 25, 2009. (Doc. No. 11).

On May 21, 2009, the parties consented to proceed with the instant action before the undersigned pursuant to 28 U.S.C. §636(c). (Doc. No. 19).

After several extensions of time, final dispositive motions were set to be filed on or before August 15, 2011. (Doc. No. 40). On June 29, 2011, the County filed its motion for summary judgment, (Doc. No. 41), along with a statement of facts, (Doc. No. 42), and supporting exhibits, (Doc. No. 43). A brief in support of the County's motion was filed on July 13, 2011. (Doc. No. 44).

On August 15, 2011, COLTS filed its motion for summary judgment, (Doc. No. 48), along with a supporting brief, (Doc. No. 49), and statement of material facts with exhibits, (Doc. No. 50).

After having been granted extensions of time to do so, (Doc. No. 46, Doc. No. 51), on October 17, 2011, the plaintiff filed an answer to the statement of facts filed by the County, (Doc. No. 56), a brief in opposition to the County's motion for summary judgment, (Doc. No. 57), an answer to the statement of material facts filed by COLTS, (Doc. No. 58), a brief in opposition to the motion for summary judgment filed on behalf of COLTS, (Doc. No. 59), and supporting exhibits, (Doc. No. 60, Doc. No. 61, Doc. No. 62). On October 31, 2011, COLTS filed a reply brief in support of its motion for summary judgment. (Doc. No. 64). On November 2, 2011, the County filed a reply brief in support of its motion for summary judgment. (Doc. No. 65).

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

The Supreme Court has stated that:

". . . [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. The moving party can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Issues of fact are genuine "only if a reasonably jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988)(citations omitted). Material facts are those which will effect the outcome of the trial under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court may not weigh the evidence nor make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). In determining whether an issue of material fact exists, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the nonmoving party. Id. at 393.

If the moving party meets his initial burden, the opposing party must do more than raise some metaphysical doubt as to material facts, but must show sufficient evidence to support a jury verdict in its favor. Id.

III. DISCUSSION

In her complaint, the plaintiff alleges that the County, at all relevant times, placed its Director of Transportation, Jim Finan, upon the Board of Directors of COLTS with the power and authority to oversee all matters including Title VII complaints of employment discrimination, investigations into internal charges of employment discrimination, and management of hiring and termination of employees. According to the plaintiff, the County appointed Paul Tolerico as General Manager of COLTS at all times relevant to this matter. The plaintiff alleges that the County and COLTS are each an employer covered by the anti-discrimination and anti-retaliation mandates of Title VII and/or the PHRA.

According to the plaintiff's complaint, she was employed by COLTS as a bus driver on July 3, 2006, until March 2, 2007. During her first week of employment, the plaintiff alleges that she was subjected to different terms and standards of employment, due to her gender, in that she was initially denied pay for what was designated as a paid holiday by the union contract, (i.e., July 4, 2006). Further, during her first month of employment, the plaintiff alleges that she was asked what sexual favors she performed in order to receive her job.

Within ninety (90) days of employment, the plaintiff alleges that she was "summoned to the office of her direct Supervisor, told by him that she did not need union representation present, and he very clearly in vivid language expressed interest in her and directed unwelcomed sexual attention, unwelcomed sexual conduct, unlawfully and without her consent touched her breasts, he invited her to his home, he told her he wanted a mature woman just like her, he told her he wanted Plaintiff to cook for him and sunbathe at his home while he watched from his house window, and inquired whether Plaintiff had 'stretch marks' after learning that she had three (3) children." After this incident, the plaintiff alleges that she initiated compliance with internal reporting procedures and went to human resources to complain about the incident, but was only directed to speak with COLTS' General Manager. The plaintiff alleges that she, in fact, contacted the General Manager and was told to solve her own problems. The plaintiff alleges that she ultimately returned to human resources and notified the Human Resources Manager that she would have to resign because it was apparent that, as of February 2007, neither human resources nor the General Manager had taken any steps toward preventive or corrective opportunities to resolve the plaintiff's situation.

The plaintiff alleges that her complaints to human resources went uninvestigated "because the Plaintiff was told by the Human Resources Manager that hopefully with the election we won't have to put up with this sort of problem any longer."

After the plaintiff rejected unwelcomed sexual attention from her direct supervisor, she alleges that the same supervisor imposed adverse and tangible employment action, including extending the plaintiff's probationary period numerous times, issuing a written warning for oil leaking from her bus and another for unreported damage to her bus, was told by another female driver that this male supervisor was going to get her for making the complaints, and encountered a time when the male supervisor refused to assist the plaintiff despite receiving a complaint that a passenger was threatening her and, instead, replied that the plaintiff was "too thin-skinned and needed to toughen up." The plaintiff alleges that this same male supervisor instituted charges and accusations against her which were not instituted against male bus drivers.

In February 2007, during a snow storm and blizzard, the plaintiff alleges that she was told to sleep in the garage with the men and that she would be the "entertainment for the (male) drivers." That same month, the plaintiff alleges that she was denied bereavement leave to take time off to attend the funeral of a family member. Again, in February 2007, the plaintiff alleges that she became sick at work, including vomiting and severe distress. On this occasion, the plaintiff alleges that she was told to sit in the cold garage where there was no heat and was refused the opportunity to leave work for four (4) hours.

The plaintiff alleges that the reprimands imposed upon her by her male supervisor were in retaliation for her opposition to unlawful employment practices and permanently remain within her employment file.

After the plaintiff complained to the COLTS Human Resource Manager and General Manager, she alleges that she became the subject of unwelcomed and unwanted comments of a sexual nature about her body and, despite her complaints, was told by male co-workers that she should be grateful that those co-workers would not talk about other female's bodies.

The plaintiff alleges that her male supervisor set her up to fail and for the purpose of continuing her on probation brought petty accusations against her which, except for her gender and prior opposition to unlawful employment practices, would not have been brought against a male or her. In this regard, the plaintiff alleges that her gender was a substantial factor leading to the discrimination and her treatment would have been different if she was a male.

According to the plaintiff, she involuntarily terminated her employment and provided two (2) days prior notice and a last opportunity to resolve the complaints of sexual harassment and retaliation. She alleges that she told the COLTS Human Resources Manager the reasons why she was leaving employment was related to sexual harassment and unfair treatment, and asked the Human Resources Manager not to tell her male supervisor that she was leaving or the reason why.

Based upon the above allegations, the plaintiff alleges that the defendants violated her rights under Title VII, as well as the PHRA. The plaintiff is seeking an injunction prohibiting the defendants from engaging in future violations of Title VII or the PHRA; compensatory and back pay damages (items of lost compensation such as, but not limited to overtime and shift differential), fringe benefits and pre-judgment and post-judgment interest; front pay damages for a reasonable time beyond judgment; an award of prevailing party attorneys' fees and costs associated with the suit; and such other relief as the court deems just and proper.

A. Motion for Summary Judgment by the County

The County has submitted a statement of material facts in support of its motion for summary judgment, the following of which the court finds are supported by the record and are not in material dispute.

COLTS was created in 1972 pursuant to the Municipal Authorities Act of 1945. COLTS is operated by a Board of Directors*fn2 . COLTS has the exclusive authority to hire and fire the employees of COLTS upon or subject to recommendations made by the County*fn3 . COLTS has the exclusive authority to promulgate work rules and assignments for COLTS' employees. COLTS' 2006-2007 employee handbook sets forth the standards, policies and procedures which governed the plaintiff's employment at COLTS. COLTS has the exclusive authority to set ...


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