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Sarah Kosek v. Luzerne County and Joseph Piazza

November 30, 2012

SARAH KOSEK, PLAINTIFF,
v.
LUZERNE COUNTY AND JOSEPH PIAZZA, DEFENDANTS.



The opinion of the court was delivered by: Judge Conaboy

MEMORANDUM

Here we consider Defendants' Motion for Summary Judgment (Doc. 25) filed on October 1, 2012. Defendants filed Defendants' Brief in Support of Their Motion for Summary Judgment (Doc. 26) and Defendants' Statement of Undisputed Material Facts as to Which No Genuine Issue Remains to Be Tried (Doc. 27) on October 11, 2012. With the motion, Defendants seek summary judgment in their favor on all claims contained in Plaintiff's Amended Complaint (Doc. 4).

Plaintiff filed Plaintiff's Brief in Opposition to Defendants' Brief in Support of Their Motion for Summary Judgment (Doc. 29) and Plaintiff's Response to Statement of Facts and Counterstatement (Doc. 30) on November 5, 2012. On November 21, 2012, Defendants filed Defendants' Reply Brief in Support of Their Motion for Summary Judgment (Doc. 31) and Defendants' Response to Plaintiff's Counterstatement of Material Facts (Doc. 32). With these filings, this motion is now fully briefed and ripe for disposition. For the reasons discussed below, Defendants' motion is denied.

I. Background

Plaintiff Sarah Kosek ("Plaintiff") became employed at the Luzerne County Correctional Facility ("LCCF") as a correctional officer on March 21, 2005. (Doc. 27 ¶ 1; Doc. 30 ¶ 1.) A vacant correctional counselor position was posted at the LCCF on July 20, 2009. (Doc. 27 ¶ 2; Doc. 30 ¶ 2.) Plaintiff applied for the position on July 22, 2009. (Doc. 27 ¶ 3; Doc. 30 ¶ 3.)

Approximately six (6) people applied for the position and were interviewed. (Doc. 27 ¶ 4; Doc. 30 ¶ 4.) The interviewees included Robert Hetro ("Mr. Hetro") who was first employed at the LCCF in February of 2008 as a corrections officer II. (Doc. 27 ¶¶ 16, 17; Doc. 30 ¶¶ 16, 17.)

The LCCF Warden Joseph Piazza ("Defendant Piazza") asked Jennifer Lombardo ("Ms. Lombardo"), the Director of the LCCF's Day Reporting Center whose duties included supervision of the correctional counselors, to assist him with the interviews for the correctional counselor position. (Doc. 27 ¶¶ 5-6; Doc. 30 ¶¶ 5-6.) During the interview, Defendant Piazza had the applicants' personnel files and transcripts for review. (Doc. 27 ¶ 8; Doc. 30 ¶ 8.) At the completion of the interview process, Ms. Lombardo and Defendant Piazza narrowed the field of applicants to Plaintiff and Mr. Hetro. (Doc. 27 ¶ 22; Doc. 30 ¶ 22.) Defendant Piazza made the ultimate decision as to who would be promoted to the counselor position. (Doc. 27 ¶ 25; Doc. 30 ¶ 25.)

Mr. Hetro was hired for the correctional counselor position effective August 28, 2009. (Doc. 27 ¶ 27; Doc. 30 ¶ 27.) Plaintiff filed a union grievance against the County based on her overall seniority. (Doc. 27 ¶ 28; Doc. 30 ¶ 28.) Article VIII, Section 5 of the applicable collective bargaining agreement provides that in the selection process for a vacancy, seniority should prevail where "qualification, experience, physical fitness, ability, and efficiency of the Employee to perform the job are relatively equal." (Doc. 30 ¶ 36; Doc. 32 ¶ 36.)

Eventually the matter was settled and Plaintiff was put into the correctional counselor position. The parties dispute the date of the settlement and the cause of the resolution of the grievance and award of the position. Defendants aver the grievance settled on May 25, 2011. (Doc. 27 ¶ 28.) In support of this assertion, Defendants' citations include a letter from Defendant Piazza to union representative Anthony Seiwell dated May 25, 2011, informing him the grievance was settled by mutual agreement "between the parties, union and management." (Doc. 28-13 at 2.) Plaintiff disputes this settlement date, asserting the Luzerne County Prison Board tabled consideration of settlement of Plaintiff's grievance on May 24, 2011, and June 13, 2011, and finally approved the settlement of the grievance on September 12, 2011--after she filed her federal complaint on August 22, 2011, and the lawsuit was reported in the Wilkes-Barre Times Leader on August 23, 2011. (Doc. 30 ¶¶ 28, 31, 32.) Defendants agree the Luzerne County Prison Board tabled consideration of settlement of Plaintiff's grievance on May 24, 2011, and June 13, 2011. (Doc. 32 ¶¶ 31, 32.)

Plaintiff was awarded a correctional counselor position with back pay effective August 28, 2009.*fn1 (Doc. 27 ¶ 28.) Plaintiff became a correctional counselor on September 23, 2011.*fn2 (Doc. 27 ¶ 29; Doc. 30 ¶ 29.)

The award of the correctional counselor position to Mr. Hetro is at the heart of this litigation. Therefore, Plaintiff's and Mr. Hetro's qualifications for the position are relevant.

Plaintiff graduated from King's College with a bachelor's degree in criminal justice, magna cum laude. (Doc. 30 ¶ 44; Doc. 32 ¶ 44.) She has an Associates Degree in criminal justice counseling (Doc. 30 ¶ 48), Act 120 Police Academy certification issued from Lackawanna College and was a member of Alpha Phi Sigma, the National Criminal Justice Honor Society (Doc. 30 ¶¶ 49-50; Doc. 32 ¶¶ 49-50).

Mr. Hetro graduated from King's College with a bachelor of arts in criminal justice and a class rank of 232 out of 245. (Doc. 27 ¶ 18; Doc. 30 ¶¶ 18, 45; Doc. 32 ¶ 45.) He had a minor in psychology and Act 120 certification from the police academy. (Doc. 27 ¶ 18; Doc. 30 ¶ 18.) Mr. Hetro also served as a uniformed patrolman, was a junior counselor at Pennsylvania State Police Camp Cadet, and was a member of the North American SWAT Training Association. (Doc. 27 ¶ 19; Doc. 30 ¶ 19.)

When Plaintiff worked as a corrections officer at the LCCF in the main prison, she worked with both male and female inmates. (Doc. 30 ¶ 40.) Because only males were housed in the Minimal Offenders Building where Mr. Hetro worked as a Correstions Officer II, he worked only with males. (Doc. 30 ¶ 43; Doc. 32 ¶ 43.)

The parties dispute Plaintiff's prior experience and the nature of the posted job duties. (Doc. 27 ¶ 10; Doc. 30 ¶ 10.) Defendants assert that, "before applying for the counselor position, Plaintiff had no experience with any of the posted job duties except counseling inmates on issues related to institutional, vocational and/or community adjustment and/or problems and working effectively with law enforcement and community treatment providers and legal support." (Doc. 27 ¶ 10.) Plaintiff maintains that she "also had a working knowledge of all existing post orders, policies, procedures and directives, . . . had knowledge of basic computer programs . . .[,] performed security duties as directed by the Warden[,] . . . and complied with directives given by the Warden or Deputy Warden . . . . (Doc. 30 ¶ 10.) Plaintiff adds that the posted job duties were not qualifications for the position and could not have been performed in their entirety except by a person in that position. (Doc. 30 ¶ 10.)

At their depositions, Defendant Piazza and Ms. Lombardo provided explanations for the decision to hire Mr. Hetro in August 2009---the decision which Plaintiff asserts violated Title VII's prohibition against discrimination on the basis of gender.

Defendant Piazza reported that Mr. Hetro's qualifications and experience were greater than Plaintiff's---testimony Plaintiff calls self-serving, subjective conclusions and not statements of fact. (Doc. 27 ¶ 24; Doc. 30 ¶ 24.) Defendant Piazza reported that he believed Mr. Hetro was a better job candidate because of the following: his experience as a practical police officer gave him practical experience with the criminal justice system; he had a bachelor of arts degree in criminal justice, a minor in psychology, and Act 120 certification; he presented as more self-confident; and he had better communication skills. (Doc. 27 ¶ 26.) Plaintiff also calls this testimony self-serving and not a statement of fact. (Doc. 30 ¶ 26.) Plaintiff adds that Defendant Piazza referenced Mr. Hetro's high school extra-curricular ...


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