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Mary Catherine Baur v. Elizabeth Crum; Tom Hines

March 30, 2012

MARY CATHERINE BAUR PLAINTIFF,
v.
ELIZABETH CRUM; TOM HINES; KAREN WERTHEIMER; DAVID CICOLA; TODD SEELIG; AND, THE DEPARTMENT OF LABOR AND INDUSTRY DEFENDANTS.



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

MEMORANDUM

I. Introduction

The above-captioned matter arises from Plaintiff Mary Catherine Baur's employment as an Attorney Examiner in the Bureau of Workers' Compensation Office of Adjudication. Throughout the course of her decade-long term of employment with Defendants, Plaintiff has complained that on several occasions, various co-workers attempted to physically choke/strangle her, and that she has been systematically discriminated against since her employment commenced in 1996. In addition to calling the Capitol Police and threatening to call the FBI, Plaintiff has filed numerous Civil Service Commission, Pennsylvania Human Relations Commission (PHRC) and Equal Employment Opportunity Commission (EEOC) complaints against Defendants throughout the course of her employment.

Plaintiff filed the within action on March 12, 2008, alleging violations of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §1983.*fn1 In her Amended Complaint, Plaintiff brings retaliation, gender discrimination, and hostile work environment claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2, 2000e-3, as well as a First Amendment retaliation claim and a gender discrimination claim pursuant to 42 U.S.C. § 1983 ("§ 1983"). After extensive discovery, Defendants filed a Motion for Summary Judgment and for the reasons which follow, this Court will grant judgment on behalf of Defendants regarding all of Plaintiff's claims, except her § 1983 gender discrimination claim and her hostile work environment claim.

II. Factual Background *fn2 *fn3

Plaintiff began working for Pennsylvania's Department of Labor and Industry ("L&I") on February 5, 1996, as an Attorney Examiner I. (Defs' Am. Statement of Undisputed Facts, ¶ 1.) The Attorney Examiner I position is a first level administrative judge position from which Workers' Compensation Judges may be promoted. (Baur Decl. Ex. 1a at 8.) Plaintiff's responsibilities included writing decisions to be reviewed and approved by the Workers' Compensation Judges. (Id.) Plaintiff was hired in part to help reduce the Workers' Compensation Judges' backlog. (Hines Dep. 34:9-20, August 7, 2008.) Plaintiff alleges that, when the Attorney Examiners I were hired, it was with the understanding that they would be promoted to Workers' Compensation Judges. (Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 2, D066.) Plaintiff's direct supervisor at the time she was hired was Defendant Thomas Hines ("Hines"), who was Judge Manager of the region. (Pl.'s Resp. to Defs.' Am. Statement of Material Facts ¶ 3.) Two other Attorney Examiner I's, both male, were promoted to Workers' Compensation Judge positions by 2002. (Baur Decl. ¶ 18; Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 2, D066.)

In November and December of 2002, Plaintiff bid for a Workers' Compensation Judge position in Reading, Pennsylvania, and one in Allentown, Pennsylvania. (Pl.'s Original Resp. to Defs.' Statement Material Facts, Ex. B, 3-4; Defs' Am. Statement of Undisputed Facts, Ex. 1, Baur 2, D061.)*fn4 Terry Knox was hired for the position in Reading. (Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 2, D061.) In February, 2003, Plaintiff learned that Beverly Doneker had been hired for the Allentown position. (Id.) Plaintiff filed a civil service complaint with the Civil Service Commission regarding the Allentown non-promotion. (Pl.'s Original Resp. to Defs.' Statement Material Facts, Ex. B; Baur Decl. ¶ 18.) Plaintiff filed a dual complaint regarding both non-promotions with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC") on August 1, 2003, and amended the complaint on December 11, 2003. (Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 2.) In the complaint, Plaintiff alleged discrimination based on gender, age, and retaliation. (Id.) In September 2004, Plaintiff notified the EEOC of her change of address. (Id. at Ex. 1, Baur 3.) However, when the EEOC ultimately sent Plaintiff her Right to Sue letter on January 17, 2007, Plaintiff never received it because it had been sent to her previous address. (Id. at Ex. 1, Baur 4.)

On April 1, 2005, Defendant Karen Wertheimer ("Wertheimer") replaced Hines as Plaintiff's direct supervisor and as Judge Manager of the region. (Defs.' Am. Statement of Undisputed Facts ¶ 9.) On November 17, 2005, Wertheimer met with Plaintiff to discuss certain job-related issues. (Baur Decl. ¶ 32; Wertheimer First Dep. 64:10-65:23, August 11, 2008; Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 9.) One such issue involved Plaintiff's use of a key to access the Northeast office off-hours. (Werthheimer First Dep. 63:3-11.) When Wertheimer asked Plaintiff why she needed the key, Plaintiff told her that she needed to come in after hours to do work. (Wertheimer First Dep. 55:1-56:18, 63:23-65:23, 70:4-25.) Wertheimer found this statement odd, because Plaintiff had also told her that she did not have enough work to do. (Id.) As such, Wertheimer requested that Plaintiff fill out timesheets and turn in her key to the office she had previously been going to after hours. (Id.) According to Wertheimer, the timesheet request was to determine whether Plaintiff in fact had too much work, or not enough. (Id.)

On February 9, 2006, Wertheimer approached Plaintiff's cubicle in order to discuss Plaintiff's upcoming attendance at an International Association of Industrial Accident Boards and Commissions ("IAIABC") conference. (Wertheimer First Dep. 93:1-12; Baur Decl. ¶ 39) Wertheimer intended to let Plaintiff know that she had to attend the conference on her own time, but the discussion soon escalated, and Wertheimer became angry with Plaintiff and started yelling at her. (Wertheimer First Dep. 93:1-95:2; Defs.' Am. Statement of Undisputed Facts ¶ 12.) Plaintiff filed a dual complaint with the PHRC and EEOC regarding this incident, alleging age discrimination and retaliation. (Baur Decl. ¶ 39; Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 5.) Later that afternoon, Wertheimer ordered Plaintiff to attend a meeting where she again told Plaintiff that she had to attend the IAIABC conference on her own time and money, which Plaintiff said she was planning to do anyway. (Defs.' Am. Statement of Undisputed Facts ¶¶ 14--17.) On February 10, 2006, Plaintiff filed another dual complaint with the PHRC and EEOC, alleging retaliation regarding the second meeting. (Baur Decl. ¶ 40; Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 6.)

In May 2006, Wertheimer issued Plaintiff a performance review for the dates April 2, 2005, through January 31, 2006. (Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 8.) In the review, which included a "needs improvement" rating for "interpersonal relations," Plaintiff received an overall rating of "satisfactory." (Id.)

On May 15, 2006, Plaintiff filed a citizen's complaint with the United States Attorney's Office regarding an alleged supersedeas fund scheme. (Baur Decl. ¶ 50; Ex. 16a.) On July 28, 2006, Plaintiff reported this scheme, along with allegations of Wertheimer's continued retaliation, to the Civil Service Commission. (Baur Decl. ¶ 50; Ex. 18a.)

On August 21, 2006, Wertheimer and Amanda Lawrence ("Lawrence"), a human resource analyst for L&I's Labor Relations Division, met with Plaintiff in order to provide her with a Memorandum of Instruction ("MOI"). (Defs.' Am. Statement of Undisputed Facts, ¶¶ 19--21.) This MOI stated that Plaintiff needed to complete assignments in a more timely manner and comply with her timesheet reporting requirements. (Defs.' Am. Statement of Undisputed Facts, at Ex. 1, Baur 9.) Wertheimer informed Baur that the MOI constituted a direct order. (Id.) Plaintiff alleged that it was a setup, and she told Wertheimer and Lawrence that it would be impossible to comply with the MOI. (Baur Dep. 128:15-135:12, August 7, 2008; Baur Decl. ¶ 51.) Plaintiff did not provide any timesheets after this meeting. (Baur Dep. 137:16-20.)

On September 5, 2006, Peter Perry, a retired Workers' Compensation Judge, was rehired to a vacant Workers' Compensation Judge position. (Crum Dep. 101--03, November 19, 2008; Baur Decl. ¶ 59.) Plaintiff filed a complaint with the Civil Services Commission because she was not promoted to this position. (Baur Decl. ¶ 59.)*fn5

On September 21, 2006, Plaintiff went to Wertheimer's office to attend a meeting in which David Cicola ("Cicola"), L&I's Director of the Workers' Compensation Office of Adjudication (Am. Compl. ¶ 8), would be participating by phone. (Defs.' Am. Statement of Undisputed Facts ¶¶ 26--27.) However, upon entering the office, Plaintiff wanted the door to remain open because she was "scared" of Wertheimer. (Defs.' Am. Statement of Undisputed Facts Ex. 1, Baur 14; Baur Decl. ¶ 61.) Wertheimer thought it would be better to have the door closed, in order to keep the conversation private. (Defs.' Am. Statement of Undisputed Facts Ex. 1, Baur 14; Baur Decl. ¶ 61.) The situation soon escalated, prompting Plaintiff to seek the assistance of the Capitol Police. (Defs.' Am. Statement of Undisputed Facts Ex. 1, Baur 14; Baur Decl. ¶ 61.) After this incident, Plaintiff filed a dual complaint with PHRC and EEOC, alleging retaliation and age discrimination. (Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 14.)

On September 25, 2006, Wertheimer and Lawrence met with Plaintiff so that they could conduct a fact finding with respect to Plaintiff's apparent noncompliance with the August 21, 2006 Memorandum of Instruction. (Defs.' Am. Statement of Undisputed Facts ¶¶ 34--35.) At the beginning of the meeting, there was a debate as to whether the door would remain locked or unlocked. (Defs.' Am. Statement of Undisputed Facts, Ex. 2; Lawrence Dep. 49:22-51:20; Baur Decl. ¶ 62.) Lawrence claims that throughout the meeting Plaintiff did not address Wertheimer and that her manner appeared insubordinate. (Defs.' Am. Statement of Undisputed Facts, Ex. 2, Lawrence Dep. 54:25-58:11, November 12, 2008.) Lawrence then asked Wertheimer to leave the meeting so that she could speak privately with Plaintiff. (Id. at 58:25-59:3.) At that time, Plaintiff told Lawrence that she was afraid of Wertheimer, and that if given the opportunity, she believed Wertheimer would push her down the steps. (Id. at 59:22-60:15.) Baur also told Lawrence that she had been subject to numerous incidents of workplace violence, including at least four choking incidents by different co-workers. (Id. at 88:11-21.) Lawrence claims that Plaintiff was visibly upset during this conversation, and that Lawrence felt Plaintiff was genuinely fearful for her physical safety. (Id. at 60:3-15.)

Later on September 25, 2006, Lawrence, concerned about what Plaintiff had told her regarding workplace violence, contacted Ann Hager ("Hager") and Rebecca Pratt ("Pratt"), L&I's workplace violence coordinators. (Defs.' Am. Statement of Undisputed Facts ¶¶ 45--46.) Hager then set up a meeting with Plaintiff to discuss the situation. (Id. at ¶ 47.) On September 28, 2006, Plaintiff, Hager and Pratt met, and Plaintiff told Hager she had been a victim of workplace violence. (Id. at ¶¶ 48-49; Baur Decl. ¶ 64.) Hager became very concerned about Baur's behavior during the meeting, and shortly thereafter, called Donna Hoskins-Helm ("Hoskins-Helm"), the Acting Division Chief for Workplace Support Services, to ask permission to request an Independent Psychological Examination ("IPE") for Baur.*fn6 (Defs.' Am. Statement of Undisputed Facts, ¶ 54--55; Ex. 3, Hager Dep. 72:16-78:4, October 15, 2008.) Hager submitted the request to the Governor's Office of Administration. (Hager Dep. 101:25-102:1-11.) Hoskins-Helms reviewed the request and determined that there was reasonable cause to require Baur to undergo the IPE. (Id. at Ex. 4, Hoskins-Helm Dep. 18:7-10, November 12, 2008; Hager Dep. 97:4-7.)

On October 10, 2006, Plaintiff was informed that she would be suspended the following day for failing to comply with the August 21, 2006 Memorandum of Instruction. (Baur Decl. ¶ 65; Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 10.) Plaintiff did in fact serve the one day suspension on October 11, 2006. (Baur Decl. ¶ 65.) The following day, Plaintiff met with Cicola, Lawrence, and Hager. (Defs.' Am. Statement of Undisputed Facts Ex. 1, Baur Dep., 149--50; Baur Decl. ¶ 66.) Cicola instructed Plaintiff that she had to contact the State Employees' Assistance Program ("SEAP") to schedule an IPE. (Defs.' Am. Statement of Undisputed Facts Ex. 1, Baur Dep. 150:4-7; Baur Decl. ¶ 66.) Baur refused, prompting Cicola to suspend Plaintiff . (Defs.' Am. Statement of Undisputed Facts Ex. 1, Baur Dep.150:8-10.) Plaintiff received official written notice of the suspension by letter dated October 16, 2006. (Id. at Ex. 1, Baur 12.)

On October 23, 2006 Lawrence and Cicola met with Plaintiff and again instructed her to contact SEAP, but Plaintiff again refused. (Defs.' Am. Statement of Undisputed Facts ¶¶ 67--69; Baur Decl. ¶ 67.) On November 4, 2006, Plaintiff received a letter dated October 31, 2006, which stated that L&I had officially terminated her for failing to contact SEAP in order to schedule an IPE. (Baur Decl. ¶ 68; Defs.' Am. Statement of Undisputed Facts, Ex. 1, Baur 13.) Plaintiff avers that on November 6, 2006, someone at PHRC told her that she did not need to file another complaint after she was fired, as it would all be included in the September 2006 complaint. (Baur Decl. ¶ 69.)

Plaintiff commenced the instant action by filing a Complaint on March 12, 2006, which she later amended on June 17, 2008.

III. Standard of Review

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "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." Fed. R. Civ. P. 56(c)(2). A motion for summary judgment will not be defeated merely because there is some factual dispute between parties; only disputed material facts that might affect the outcome of the suit will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248. (1986). "[T]he court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party." Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995) (internal citations omitted). Instead,

A court should grant summary judgment "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 a judgment as a matter of law." The Supreme Court has further ruled that a "genuine" issue exists if "the evidence is such that a reasonable jury could return a verdict for the non-moving party," and a factual dispute is "material" when it "might affect the outcome of the suit under the governing law."

In considering a motion for summary judgment, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." In a summary judgment motion, the moving party has the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. The party opposing the motion, however, cannot rely merely upon bare assertions, conclusory allegations, or suspicions to support its claim.

Sentry Select Ins. Co. v. LBL Skysystems (U.S.A.), Inc., 486 F. Supp. 2d 496, 506 (E.D. Pa. 2007) (citations omitted).

In support of her Opposition to the instant Motion, Plaintiff relies heavily upon a Declaration she prepared on March 13, 2009. (Doc. No. 32.) In said Declaration, Plaintiff's version of various events differs from that given during her deposition. This Court is mindful that:

In ruling on a motion for summary judgment, a court may consider, among other things, affidavits when determining whether no genuine issue of material fact exists such that a party is entitled to judgment as a matter of law. Affidavits filed in support of a motion for summary judgment may be considered for the purpose of ascertaining whether a party has raised an issue of fact.

A party, however, may not escape summary judgment by attempting to create a material issue of fact "by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict."

Lytle v. Capital Area Intermediate Unit, No. 05-0133, 2009 U.S. Dist. LEXIS 1430, at *6 (M.D. Pa. Jan. 9, 2009) (citations omitted), aff'd, 393 F. App'x 955 (3d Cir. 2010).

In the Motion for Summary Judgment presently before this Court, Defendants raise various grounds in support of their contention that no genuine issues as to any material facts exist, which would entitle Plaintiff to relief. A discussion of same follows.

IV. ...


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