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Peter J. Kost v. Dep't of Public Welfare

December 15, 2011


The opinion of the court was delivered by: Jones, II, J.


Presently before the Court is the summary judgment motion of Defendants Estelle B. Richman, Denise White and Sandy Brooks of the Department of Public Welfare, Commonwealth of Pennsylvania ("DPW"). (Dkt. No. 40.) For the reasons set forth below, Defendants' Motion will be DENIED in part and GRANTED in part.


Plaintiff Peter J. Kost timely filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"); he received right-to-sue letters from the EEOC and the PHRC in March 2007. On June 14, 2007, Mr. Kost filed his original Complaint against in Ms. Richman in her official capacity as Secretary of DPW. (Dkt. No. 1.) On September 24, 2007, he filed an Amended Complaint (Dkt. No. 4), and on May 6, 2008, he amended his Complaint again, adding Denise White and Sandy Brooks as Defendants. (Dkt. No. 9).*fn1

Currently pending before this Court is Mr. Kost's Third Amended Complaint, filed on March 11, 2009. (Dkt. No. 22.)*fn2 In his Third Amended Complaint, Mr. Kost asserts that DPW discriminated against him on the basis of his race, and that Defendants Brooks and White conspired to deprive him of his constitutional rights. Mr. Kost brings a claim pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., against DPW (Count I); he also brings a claim pursuant to 42 U.S.C. § 1983 against Defendants Brooks and White (Count II). On March 31, 2009, Defendants filed their Answer and Affirmative Defenses to the Third Amended Complaint. (Dkt. No. 23.)

On January 15, 2010, Defendants filed their Motion for Summary Judgment ("MSJ"), along with their Memorandum of Law in Support of their Motion and Statement of Undisputed Facts ("Defs. SOF"). (Dkt. No. 40, collectively.) Mr. Kost filed his opposition ("Pl. Opp."), including his Memorandum of Law in Opposition to Defendants' Motion ("Pl. Mem.") and his own Statement of Undisputed Facts (Dkt. No. 44, collectively), as well as his response to Defendants' Statement of Undisputed Facts ("Pl. Opp. to Def. SOF") (Dkt. No. 45), on February 19, 2010.*fn3 With the Court's permission, Defendants filed a reply brief on March 2, 2010 ("Defs. Reply") and Mr. Kost filed a supplemental response on June 29, 2010. (Dkt. Nos. 49 and 54, respectively.)


On April 18, 2005, Mr. Kost began working as an Income Maintenance Caseworker (IMCW) trainee at the Norristown County Assistance Office of the DPW. (Ex. 1 to MSJ, (Deposition of Plaintiff Peter J. Kost, dated August 20, 2009 ("Kost Dep.")) at 42-44.) Mr. Kost was accorded probationary status as an IMCW trainee. (Ex. 3 to MSJ (Deposition of Defendant Sandy Brooks, dated August 6, 2009 ("Brooks Dep.")) at 27.) This probationary period ordinarily lasts six months, after which trainees receive an Employee Performance Review ("EPR") and are either granted permanent status or have probation extended for another six months, with a second EPR after 60 days. (Brooks Dep. at 27.) If trainees fail to receive a satisfactory rating by the end of the extension period, they are dismissed. (Ex. 2 to MSJ (Deposition of Defendant Denise White, dated August 6, 2009 ("White Dep.")) at 80-81.)

From the beginning, the record reveals very different accounts of Mr. Kost's relationships with his colleagues. Mr. Kost's first training supervisor was Ms. Donna McMahon, a white female. (Kost Dep. at 63-64.) According to Ms. McMahon, Mr. Kost became upset and argumentative in response to criticism, often raising his voice when Ms. McMahon returned his work for corrections. (Ex. 8 to MSJ (Declaration of Donna McMahon ("McMahon Decl.") ¶ 6; Ex. 11 to MSJ (Declaration of Michael Branca ("Branca Decl.") ¶ 6.) For example, Mr. Kost allegedly grew argumentative when he and Ms. McMahon had a disagreement over whether he would use a pen or pencil in completing his paperwork. (McMahon Decl. ¶¶ 9, 14.) Ms. McMahon claims she held a corrective conference with Mr. Kost to address his inappropriate behavior in response to her instructions on how to prepare a case record. (Att. A to McMahon Decl. ¶ 10 ("July 2005 McMahon Memo").) Another corrective conference allegedly was held in response to Mr. Kost waving a case and loudly saying, "Look at this, why couldn't she tell me this the first time, why does this case keep going back and forth." (McMahon Decl. ¶ 11; Branca Decl. ¶ 6.) In Defendants' version of the facts, Mr. Kost sometimes yelled so loudly during conferences with Ms. McMahon that Ms. Jenifer Burton and Mr. Michael Branca, members of Mr. Kost's training class, could hear him through a closed door. (Ex. 12 to MSJ (Declaration of Jennifer Burton-Branca ("Burton Decl.") ¶ 8; Branca Decl. ¶ 7.)*fn4

In contrast, Mr. Kost considered his relationship with Ms. McMahon "good, but at times, . . . troubling, too." (Kost Dep. at 67.) He insists that he viewed criticism as a learning experience, was never bothered by criticism, and never raised his voice to Ms. McMahon. (Kost Dep. at 69, 129; Declaration of Peter J. Kost, Ex. 2 to Pl. Opp. ("Kost Decl.") ¶ 23.) Though he concedes that there was a disagreement over whether he would use pen or pencil in completing assignments, he denies ever becoming argumentative and contends that Ms. McMahon had given him conflicting instructions. (Kost Dep. at 67-68; Pl. Opp. to Defs. SOF ¶¶ 42-43; Ex. 17 to Pl. Opp. to Defs. MSJ (Trainer Review of Data Entry).) Mr. Kost denies that he and Ms. McMahon ever met in a corrective conference. (Pl. Opp. to Defs. SOF ¶¶ 48-50; Kost Dep. at 73-74.) He also denies that he ever raised his voice loudly enough that Ms. Branca could hear it. (Kost Decl. ¶ 3.) Mr. Kost points to other allegedly discriminatory comments that Ms. Burton made to Mr. Kost, implying that Ms. Burton's observations should not be believed. (Pl. Opp. to Def. SOF ¶ 51.)

In September 2005, Ms. McMahon was promoted, and Mr. Kost was assigned to a new training supervisor, Ms. Sandy Brooks. (Kost Dep. at 66-67; McMahon Decl. ¶ 3). Ms. Brooks is an African-American female. (Defs. SOF ¶ 53.) At the time, Ms. Brooks was supervising Ms. Jewel Moseley, Ms. Burton, and Ms. Abimbola Opaleye-Oluwo. (Kost Dep. at 106-07.) All of them are African-American females as well. (Id.) Later, Mr. Joseph Magee--a white male--was added to the group. (Kost Dep. at 94, 107-08; Brooks Decl. ¶ 20).

Mr. Kost's relationship with Ms. Brooks initially was "positive." (Kost Dep. at 70.) In an email to Mr. Kost, Ms. Brooks remarked, "You were not expected to know everything to do on the cases, but you are expected to learn from mistakes made and not make the same mistakes in the future. I feel confident that you are doing so." (Ex. 27 to Pl. Opp. to Defs. MSJ (Brooks Email to Kost dated October 20, 2005); Ex. A, Brooks Decl. ¶ 10.) According to Mr. Kost, however, Ms. Brooks' attitude toward him changed after his six-month EPR. (Ex. 14 to MSJ ("October 2005 EPR"); Pl. Opp. to Defs. SOF ¶ 59; Kost Dep. at 81.) That EPR was completed by Ms. McMahon and Ms. Brooks, and it was approved by Ms. Denise White, an African-American female, who supervised training supervisors, including Ms. McMahon and Ms. Brooks. (McMahon Decl. ¶ 14; Brooks Dep. at 34, 52; Defs. SOF ¶ 21; White Dep. at 21, 68-69.) Because Mr. Kost received an "Overall Rating" of "Needs Improvement," his probationary status was extended, and he would receive another EPR in 60 days. (McMahon Decl. ¶ 14.) Mr. Kost also was rated as "Needs Improvement" in the EPR's "Communications" category, with related comments noting disagreements between Ms. McMahon and Mr. Kost, along with the comment, "You often had difficulty following instructions and were often argumentative with your supervisor." (McMahon Decl. ¶¶ 11-14.)

Mr. Kost believes that the bad review was part of a plan to set him up for termination on the basis of race. (Pl. Opp. to Defs. SOF ¶ 66.) According to Mr. Kost, he overheard Ms. White yell into the telephone:

I hate the fact that these people are veterans because they have preference. They're--majority of them are white, and they never work out, and I have to get rid of them. . . . I'm going to offer them that if they resign, they could get unemployment, and that way, they'll have a clear name and nothing negative would happen. (Kost Dep. at 51.) Mr. Kost relayed what he heard to Mr. Jim Burne and Mr. Ed LeSage--both of whom were white military veterans, like him. (Kost Dep. at 51-52.) Mr. Burne initially had received a "positive" review after his three month in-class training, and then later had received a "vicious" review from Ms. Brooks and Ms. White. (Ex. 10 to Pl. Opp. to Defs. MSJ (Testimony of Jim Burne before Civil Service Comm'n at 94).) According to Mr. Burne, not "as much time was spent with [white males], as far as on the job training after the training class ended. I don't think there was interest." (Id. at 98.) Mr. Cornelius Leone, a white male clerk supervised by Ms. White, also testified that "non-white co-workers, non-white peers, were given more benefit of the doubt, as far as making mistakes, as opposed to the Caucasian clerks." (Ex. 11 to Pl. Opp. to MSJ, Testimony of Cornelius Leone before Civil Service Comm'n at 75.)

Mr. Kost did not sign the EPR because, in his view, it contained a number of incorrect statements. (Kost Dep. at 74.) He requested and was granted a meeting with Ms. White, Ms. Brooks, and Mr. Kost's union representative Ed Woltermate, a white male. (Kost Dep. at 80-81, 130; White Dep. at 71.) Mr. Kost contends that he tried to explain to Ms. White that he had never been disruptive, but she responded that "this is the way it's going to be . . . I'm not going to change it." (Kost Dep. at 77.) According to Mr. Kost, he expressed to Ms. White that DPW was discriminating against him because he was a white male, pointing to Mr. Burne and Mr. LeSage's failure to achieve permanent status and to Ms. White's alleged statement about disliking white veterans. (Kost Dep. at 77-79.) In response, Ms. White allegedly yelled at him, calling him an "absolute goddamn liar." (Kost Dep. at 79.) Before leaving the meeting, Mr. Kost vowed that "the truth will come out someday, even if it takes me the rest of my life." (Kost Dep. at 77, 81.) Mr. Kost remained on probationary status. Ms. Moseley and Ms. Burton received permanent employment status. (Kost Dep. at 108.)

According to Mr. Kost, Ms. Brooks became "very bossy" after the October 2005 EPR. (Kost Dep. at 94.) According to Ms. Brooks, Mr. Kost became more difficult to supervise. (Brooks Dep. at 53.) What is clear is that Ms. Brooks met with Mr. Kost several times to discuss errors and provide suggestions for the future. (Pl. Opp. to Defs. SOF ¶¶ 78-81; Defs. SOF ¶¶ 78-81.) Ms. Brooks contends that Mr. Kost would engage in lengthy discussions of disputed issues, while Mr. Kost insists that he merely "did as he was instructed" and occasionally sought advice from other supervisors. (Brooks Decl. ¶¶ 17-18; Pl. Opp. to Defs. SOF ¶ 78; Kost Dep. at 104-05.)

Mr. Kost contends that Ms. Brooks gave greater instruction to the African-American employees than to him and the other white males in the office. (Kost Dep. at 77; Kost Decl. ¶¶ 32-35.) He believed that his work was scrutinized more closely by Ms. Brooks, even though he was performing his job better than Ms. Moseley and Ms. Burton. (Kost Dep. at 99-101.) Mr. Kost notes that at one point, Ms. Moseley said to him, "Look at the situation here . . . I'm black.

My supervisor's black. And her supervisor is . . . Hey, well, you're outnumbered." (Kost Dep. at 59.) In Mr. Kost's version of events, at some point, he told Ms. Brooks that his less favorable treatment was the result of "discrimination." (Kost Dep. at 95.) Ms. Brooks responded by asking him if he was "calling [her] a racist" and by pointing to her bi-racial parents. (Id.). Ms. Brooks denies that this conversation took place. (Defs. SOF ¶ 87 n.3.)

Mr. Kost went on sick leave for two weeks in mid-November 2005. (Kost Dep. at 112.) When he returned, he began to ask for his 60-day EPR. (Kost Dep. at 112-13.) Ms. Brooks told him that the EPR would be delayed because of his absence. (Kost Dep. at 114.)

On December 22, 2005, Mr. Kost reported what was, in his view, a discriminatory conversation that he had had with Ms. Moseley. (Kost Dep. at 114-17.) According to Mr. Kost, Ms. Moseley had stated that he "would look good as a woman" and "should consider getting a sex change." (Ex. 28 to Pl. Opp. to MSJ, Kost Speed Message re: Moseley.) Mr. Kost believed that he had been subjected to sexual harassment and requested a formal apology and a seat change. (Kost Dep. at 121.) Ms. Brooks responded by speaking with the other trainees about the incident. (Brooks Dep. at 64.) She instructed them to provide handwritten statements on Speed Message Forms. (Id.) Ms. Opaleye-Oluwo and Mr. Magee did not recall hearing the conversation, while Ms. Burton wrote that Mr. Kost had complained about being discriminated against because he was a white male in the military. (Ex. 29 to Pl. Opp. to MSJ, Burton Speed Message.) Ms. Brooks sent the Speed Messages to Ms. White. (Brooks Dep. at 36-37.) Mr. Kost's seat eventually was changed, and Ms. Moseley and Ms. Burton were told to stop their "chit-chat." (Kost Dep. at 117-20; Brooks Decl. ¶¶ 7-9.) No other disciplinary action was taken.

On January 4, 2006, Mr. Kost requested a discrimination complaint form from Ms. Brooks. (Ex. 30 to Pl. Opp. to MSJ, Brooks Email dated January 4, 2006 ("1/4/06 Brooks Email").) The same day, Ms. Brooks emailed herself a statement which she characterizes as "summarizing her problems with supervising [Mr. Kost] and the basis for her safety concerns," which she forwarded to Ms. White. (Defs. SOF § 111; Brooks Decl. ¶ 13.) In the email, Ms. Brooks wrote that Mr. Kost "feels he has to challenge every direction given," "often makes simple diretions [sic] given to him a big ordeal," "raises his voice and demands action," and "often mixes up conversations." (1/4/06 Brooks Email.) In addition, she wrote, "I sometimes feel that when I am giving direction, I need someone there because the information I give him is always brought back to me, by him, totally backwards." (Id.) Finally, she wrote, "I felt on several occasions that [Mr. Kost] could become upset enough to cause me physical harm," and that "[h]is body language dictates that he is on the verge of breaking and it is not smart to be in a closed environment with him." (Id.) Mr. Kost denies that he ever caused such a reaction. (Pl. Opp. to Defs. SOF ¶¶ 112-16.) On that same day, Ms. White reported Mr. Kost's intent to file sexual harassment charges to the Director of Human Resources, Ms. Maryann DeFranco, Ms. McMahon's sister. (Ex. 15 to Defs. MSJ, White Email to DeFranco dated January 4, 2006 ("1/4/06 White Email").)

On January 12, 2006, Ms. Linda Fuller, a white female trainee, sent Ms. White an email describing an incident wherein Mr. Kost was upset and declared that if he were fired, everyone in the office would be sorry. (White Decl. ยง 2.) Ms. Fuller said that "his tone scared me to the point that I remember it today." (Id.) Mr. Kost denies ...

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