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Elizabeth Zeisloft Shenk v. Commonwealth of Pennsylvania

May 13, 2013


The opinion of the court was delivered by: Hon. John E. Jones III


This employment discrimination action comes before the Court on the Report and Recommendation ("R&R") (doc. 46) of Magistrate Judge Mildred E. Methvin, filed March 12, 2013. Said R&R recommends that we grant in part and deny in part the pending motion for summary judgment (doc. 31). The Defendants filed objections (doc. 52) and a supporting brief (doc. 51) and the Plaintiff filed a brief opposing the Defendants' objections (doc. 53). For the reasons that follow, we shall adopt in part and reject in part Judge Methvin's recommended disposition as more fully outlined herein.


A. Review of Magistrate Judge's Report and Recommendation

When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

B. Summary Judgment

Summary judgment is appropriate if the record establishes "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). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248-49 (1986).

In opposing summary judgment, the non-moving party "may not rely merely on allegations of denials in its own pleadings; rather, its response must ... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).

Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment." Anderson, 477 U.S. at 247-48.


A. Factual Background*fn1 Plaintiff Elizabeth Zeisloft Shenk ("Plaintiff"or "Shenk") was a senior management level employee with the Defendant Pennsylvania Board of Probation and Parole ("Board"). Shenk began her employment with the Board in June of 2007 when she was hired as the Director of the Office of Administrative Services ("OAS"). Defendant Catherine McVey ("McVey"), as Chairman of the Board, was the agency's chief executive and was responsible for the overall administration of Board activities and services. Shenk reported directly to McVey throughout her tenure with the Board, and the parties do not dispute that McVey was Shenk's supervisor. Defendant John Tuttle, the Director of the Office of Probation and Parole Services, oversaw the operations side of the agency. McVey appointed Tuttle as deputy executive director, and when McVey was unavailable, which Shenk contends was often, Shenk was to report to Tuttle.

In early 2007, when Shenk's predecessor retired following an investigation into sexual harassment allegations, the Board began interviewing candidates for the OAS Director position. Shenk interviewed with McVey and Tuttle, at which point McVey stressed that the selected candidate would assume responsibility for developing the budget. Shenk had previous budgeting experience with both the Department of Public Works and the Governor's Budget Office, and following her interview, she was offered the OAS Director job and assumed the position in June of 2007. Shenk's responsibilities included overseeing the agency's administrative and management services and assisting McVey with staff development, training, equal employment opportunity services, organizational analysis, and budget analysis, among other administrative functions.

Throughout her short-lived tenure with the Board, Shenk contends that she opposed unlawful discrimination, retaliation, and sexual harassment, including discrimination against veterans. For example, when Shenk learned that several employees felt that they were being retaliated against for their involvement in the investigation of Shenk's predecessor, she reported the perceived retaliation to McVey. When she learned of a report that showed that the Board had been hiring too few females and non-white males, the Plaintiff met with Defendant Tuttle to voice her concerns with those hiring practices. The Plaintiff was also involved in a sexual harassment investigation involving two supervisors, Craig Williams and James Commins, and as part of that investigation, recommended that Williams and Commins be instructed regarding retaliation. However, that recommendation was rejected and the Plaintiff was directed to shred her report.

According to McVey, the Williams/Commins incident was the "breaking point" for her with regard to the Plaintiff, and on April 1, 2008, McVey met with Shenk and advised her that she had thirty (30) days to seek other employment. At that time, McVey mentioned the Williams/Commins investigation and showed Shenk a negative performance evaluation. McVey stated that she had prepared the evaluation but did not sign it, mail it, or place it in the her file because she did not want to damage Shenk's reputation. Shenk testified that she received a copy of the review in the mail in the summer of 2008.

On April 16, 2008, Shenk applied for and was granted FMLA leave from May 1, 2008 to July 31, 2008 in order to care for her mother. On June 12, 2008, Shenk sent an email to McVey, informing McVey of her mother's health and her job search. McVey sent a letter to Shenk on July 2, 2008, reminding Shenk of the April 1, 2008 directive that she seek new employment and informing Shenk that she was expected to comply with that directive upon return from FMLA leave. McVey concluded the letter by stating: "Please be advised that your failure to comply with my directive by [your return from leave] will result in appropriate administrative action being taken." (Doc. 32-13, p. 1). McVey did not have to take further "administrative action" because Shenk found another position. Shenk's position with the Board was ultimately filled by a male co-worker.

B. Procedural History

On August 25, 2008, Shenk cross filed a complaint with both the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission, alleging gender discrimination, association discrimination, and retaliation. Thereafter, Shenk initiated this action by filing a Complaint (doc. 1) on June 30, 2011, which asserted seven causes of action as follows: retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Count I) and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. STAT. § 951, et seq. (Count II); gender-based discrimination in violation of Title VII (Count III) and the PHRA (Count IV); retaliation in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301, et seq. (Count V); retaliation in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. (Count VI); and associational discrimination on the basis of relation to an individual with disabilities (Count VII).

The Defendants filed a motion to dismiss on September 12, 2011. On February 2, 2012, we entered an order which granted in part and denied in part said motion, holding that the Plaintiff's PHRA and USERRA claims against the Board and the Commonwealth were barred by sovereign immunity but otherwise allowing the Plaintiff's discrimination and retaliation claims to proceed. Following a period of discovery, the Defendants filed a motion for summary judgment (doc. 31) on July 31, 2012, and we referred the motion to Magistrate Judge Methvin for a report and recommendation.

C. Report and Recommendation

On March 12, 2013, Magistrate Judge Methvin issued a report and recommendation ("R&R") which recommends that we grant the Defendants' motion for summary judgment to the extent it seeks dismissal of the Plaintiff's USERRA and associational discrimination claims, finding that the record contains insufficient evidence to support either. Specifically, Judge Methvin concludes that the Plaintiff had not presented any evidence from which a reasonable jury could find that she was terminated either for her advocacy of veterans or as a result of her mother's disability. Judge Methvin recommends that summary judgment be denied with regard to the Plaintiff's ...

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