NINA B. SHAPIRO, ESQUIRE, On behalf of Plaintiff.
DAVID L. SCHWALM, ESQUIRE, ANTHONY T. BOWSER, ESQUIRE, On behalf of Defendants.
JAMES KNOLL GARDNER, District Judge.
This matter is before the court on Defendants' Motion for Summary Judgment filed March 15, 2013 ("Motion").
SUMMARY OF DECISION
Preliminarily, plaintiff's requests to withdraw all claims against defendant Dennis Stuckey, and to dismiss her equal protection and employment discrimination claims against defendant Andrea McCue, from the Second Amended Complaint are each granted.
For the reasons expressed below, Defendants' Motion for Summary Judgment is granted in part and denied in part.
Defendants' Motion is granted to the extent that it seeks summary judgment in favor of defendants with respect to plaintiff's claims of hostile work environment under Title VII and the Pennsylvania Human Relations Act, associational discrimination and retaliation under the Americans with Disabilities Act, and for defamation and false light/invasion of privacy under Pennsylvania law because plaintiff has not produced record evidence which would permit a reasonable juror to find in her favor on those claims.
However, Defendants' Motion for Summary Judgment is denied to the extent it seeks summary judgment in favor of defendants and against plaintiff on plaintiff's equal protection race and national origin discrimination claim under 42 U.S.C. § 1983 in Count I because plaintiff produced record evidence which would allow a reasonable juror to conclude the she was treated more harshly than similarly-situated non-Asian, non-Taiwanese management-level county employees.
Further, Defendants' Motion for Summary Judgment is denied to the extent it seeks summary judgment in favor of defendants on plaintiff's Title VII disparate treatment race and national origin discrimination claim against defendant County of Lancaster, and on plaintiff's parallel PHRA claim against defendants County of Lancaster, Scott Martin, Craig Lehman, and Charles E. Douts, Jr.
Similarly, Defendants' Motion for Summary Judgment is denied to the extent that it seeks summary judgment in favor of defendants on plaintiff's retaliation claim against the County under Title VII in Count II, and against defendants Martin, Lehman, and Dounts under the PHRA in Count IV.
As explained below, plaintiff established a prima facie case of race and national origin discrimination, as well as Title VII retaliation. Although defendants proffered a legitimate non-discriminatory reason for plaintiff's suspension and termination, plaintiff's record evidence could permit a reasonable juror to conclude the proffered reason was pretextual.
Accordingly, the following claims remain in plaintiff's Second Amended Complaint for disposition in this matter: plaintiff's section 1983 equal protection claim in Count I against the County and defendant Martin, Lehman, and Douts; plaintiff's disparate treatment race and national origin discrimination claim against the County (in Count II and Count IV) and defendants Martin, Lehman, and Douts (in Count IV); plaintiff's retaliation claim against the County (in Count II and Count IV) and against defendants Martin, Lehman, and Douts (in Count IV).
Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. This court has supplemental jurisdiction over plaintiff's pendent state-law claims. See 28 U.S.C. § 1367.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims occurred in Lancaster County, Pennsylvania, which is located within this judicial district.
Plaintiff initiated this action on July 13, 2010 by filing a six-count Complaint against defendants. Defendants filed a motion to dismiss on November 16, 2010. Pursuant to a stipulation approved by my Order dated January 12, 2011, and filed January 13, 2011, plaintiff filed a six-count Amended Complaint on February 7, 2011.
Plaintiff's claims in each iteration of her pleadings arose from actions allegedly taken by defendants in the context of plaintiff's employment as Director of Human Resources for the County of Lancaster. These claims concern the circumstances of plaintiff's suspension without pay and eventual termination from her position as Director of Human Resources for Lancaster County.
Count I of the Amended Complaint was brought pursuant to 42 U.S.C. § 1983 and alleged various deprivations of plaintiff's federal constitutional rights by all defendants.
Specifically, Count I alleged claims for deprivation of procedural due process, substantive due process, and equal protection in violation of the Fourteenth Amendment; claims for politically motivated wrongful termination and retaliation in violation of the First Amendment; and a claim of conspiracy to violate plaintiff's federal constitutional rights to procedural due process and equal protection of law.
Count II of the Amended Complaint alleged a claim against defendant County of Lancaster for violating Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e)-2000(e)-17.
Count III of the Amended Complaint alleged a claim against defendant County of Lancaster for violating the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101-12213.
Count IV of the Amended Complaint alleged a claim against all defendants for violating the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, No. 222, §§ 1-13, as amended, 43 P.S. §§ 951-963.
Count V of the Amended Complaint alleged a Pennsylvania state-law claim against defendants Stuckey, Martin, Lehman, Douts, and McCue ("the individual defendants") for defamation.
Finally, Count VI of the Amended Complaint alleged a Pennsylvania state-law claim against the individual defendants for false light invasion of privacy.
September 23, 2011 Order and Opinion
On February 24, 2011 defendants filed a motion to dismiss plaintiff's Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
By Order and accompanying Opinion dated September 23, 2011 and filed September 26, 2011, I granted in part and denied in part defendants' motion to dismiss the Amended Complaint.
Specifically, I granted defendants' motion to dismiss the claims in Count I against all defendants for violation of procedural due process arising from deprivation of a constitutionally protected property interest, and dismissed that claim with prejudice.
Next, I granted defendants' motion to dismiss the claims in Count I against all defendants for violation of procedural due process arising from deprivation of a liberty interest in reputation, for First Amendment retaliation, and for conspiracy pursuant to 42 U.S.C. § 1983, without prejudice for plaintiff to file a second amended complaint.
In addition, I granted defendants' motion to dismiss the claim in Count II against defendant County of Lancaster for violation of Title VII based upon a hostile work environment, without prejudice for plaintiff to file a second amended complaint.
Finally, I granted defendants' motion to dismiss the claims in Count IV against all defendants for violation of the Pennsylvania Human Relations Act ("PHRA") based upon a hostile work environment, without prejudice for plaintiff to file a second amended complaint. In all other respects defendants' motion to dismiss plaintiff's Amended Complaint was denied.
Second Amended Complaint
On October 17, 2011 plaintiff filed a six-count Second Amended Complaint.
Count I of the Second Amended Complaint asserts equal protection, procedural due process, and conspiracy claims against all defendants pursuant to section 1983.
Count II of the Second Amended Complaint alleges violations of Title VII against defendant County of Lancaster.
Count III of the Second Amended Complaint alleges violations of the Americans with Disabilities Act against defendant County of Lancaster.
Count IV of the Second Amended Complaint alleges parallel violation of the Pennsylvania Human Relations Act against defendant County of Lancaster, and claims against the individual defendants under an "aiding and abetting" theory.
Count V of the Second Amended Complaint alleges a Pennsylvania state-law claim for defamation against the individual defendants.
Finally, Count VI of the Second Amended Complaint alleges a Pennsylvania state-law claim for false light/invasion of privacy against the individual defendants.
September 28, 2012 Order and Opinion
On October 31, 2011 defendants' filed a motion to dismiss the Second Amended Complaint pursuant to Rule 12(b)(b).
On November 17, 2011 Ms. Chan filed her response and memorandum opposing defendant's motion to dismiss and attached her [Proposed] Third Amended Complaint in support of her alternative motion for leave to further amend her pleading.
On November 29, 2011 defendants filed their response in opposition to plaintiff's alternative request for leave to further amend her pleading.
By Order and accompanying Opinion dated and filed September 28, 2012, I granted in part and denied in part defendants' motion to dismiss the Second Amended Complaint.
Specifically, I granted that motion to the extent it sought to dismiss plaintiff's section 1983 procedural due process and conspiracy claims from Count I of the Second Amended Complaint, and dismissed those claims with prejudice.
However, I denied that motion to the extent it sought to dismiss plaintiff's disability discrimination claims under the Americans with Disabilities Act in Count III, and under the Pennsylvania Human Relations Act in Count IV.
As a result of the September 28, 2012 Order and Opinion, the following claims remained in the Second Amended Complaint:
Plaintiff's section 1983 equal protection claim in Count I against all defendants;
Plaintiff's Title VII disparate treatment, retaliation, and hostile work environment claim in Count II against defendant County of Lancaster;
Plaintiff's ADA retaliation and associational discrimination claim in Count III against defendant County of Lancaster;
Plaintiff's PHRA claims in Count IV against all defendants;
Plaintiff's defamation claim in Count V against the individual defendants; and
Plaintiff's false light/invasion of privacy claim in Count VI against the individual defendants.
Defendants' Motion for Summary Judgment
Defendants' Motion for Summary Judgment was filed on March 15, 2013, together with Defendants' Brief, Defendants' Statement of Undisputed Material Facts, and supporting exhibits. The Motion seeks summary judgment in favor of defendants and against plaintiff on all claims remaining in the Second Amended Complaint.
On April 8, 2013, Plaintiff's Response in Opposition to Summary Judgment was filed together with Plaintiff's Memorandum, Plaintiffs' Counter[-]Statement of Undisputed Material Facts, and supporting exhibits.
By Order dated April 23, 2013 and filed April 24, 2013, I granted defendants' request for leave to file a reply brief, established staggered deadlines for the parties to file supplemental statements of undisputed material facts, and scheduled oral argument for March 13, 2013.
In accordance with my April 23, 2013 Order, defendants filed their reply brief and a supplemental statement of facts on April 26, 2013, and plaintiff filed her responsive supplemental statement of facts on May 3, 2013. At the conclusion of oral argument on May 13, 2013, I took the matter under advisement. Hence this Opinion.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure permits a party to seek summary judgment with respect to a claim or defense, or part of a claim or defense. Rule 56(a) provides, in pertinent part, that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); National Association for the Advancement of Colored People " NAACP" v. North Hudson Regional Fire & Rescue , 665 F.3d 464, 475 (3d Cir. 2012).
For a fact to be considered material, it "must have the potential to alter the outcome of the case." Id . (citing Kaucher v. County of Bucks , 455 F.3d 418, 423 (3d Cir. 2006)). Disputes concerning facts which are irrelevant or unnecessary do not preclude the district court from granting summary judgment. Id.
Where a party asserts that a particular fact is, or cannot be, genuinely disputed, the party must provide support for its assertion. Fed.R.Civ.P. 56(c)(1). Rule 56(c)(1) provides that party may support its factual assertions by
(A) citing particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
When considering a motion for summary judgment, the district court must view the facts and record evidence presented "in the light most favorable to the non[-]moving party." North Hudson , 665 F.3d at 475 (quoting Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).
If the moving party shows that there is no genuine issue of fact for trial, "the non-moving party then bears the burden of identifying evidence that creates a genuine dispute regarding material facts." Id . (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Where a defendant seeks summary judgment, the plaintiff cannot avert summary judgment with speculation, or by resting on the allegations in his pleadings, but rather he must present competent evidence from which a jury could reasonably find in his favor. Ridgewood Board of Education v. N.E. for M.E. , 172 F.3d 238, 252 (3d Cir 1999); Woods v. Bentsen , 889 F.Supp. 179, 184 (E.D.Pa. 1995)(Reed, J.).
"Ultimately, [w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Id . (quoting Matsushita Electric Industries Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (internal quotations omitted and alteration in original).
Upon consideration of the pleadings, record papers, exhibits, affidavits, and depositions, and drawing all reasonable inferences in favor of plaintiffs as required by the forgoing standard of review, the pertinent facts are as follows.
Plaintiff Wendy Chan is an Asian female. She was born in Taiwan and is a naturalized citizen of the United States. Ms. Chan is the former Director of Human Resources for the County of Lancaster.
Ms. Chan graduated from law school in 2001 and began an extensive, year-long management-level training program for the Commonwealth of Pennsylvania.
Prior to her employment as Director of Human Resources with defendant County of Lancaster ("the County"), plaintiff spent, in chronological order from earliest to latest, two or three years as an equal opportunity specialist with the Pennsylvania Department of Public Welfare; one year as a human resource analyst with the Pennsylvania Department of Transportation; two or three years as the human resources director with the Pennsylvania Gaming Control Board; and nine months as a labor relations analyst again with the Pennsylvania Department of Public Welfare.
Defendant County of Lancaster is a Pennsylvania municipal entity governed and managed by a Board of Commissioners.
Defendants Dennis Stuckey, Scott Martin, and Craig Lehman (together, "the Commissioners") made up the three-member Board of Commissioners of Lancaster County at all times pertinent to this action. Mr. Stuckey was Chairman, and Mr. Martin was Vice-Chairman, of the Board of Commissioners. The Board of Commissioners is solely responsible for the hiring and firing of the County's management-level staff, including the Director of Human Resources.
Defendant Charles E. Douts, Jr. was the County Administrator of Lancaster County. Mr. Douts reported directly to the Board of Commissioners, and was plaintiff's direct supervisor.
Defendant Andrea McCue was the Chief Clerk of the County of Lancaster. Ms. McCue oversaw the support staff of the Lancaster County Commissioners' Office and of the County Administrator's Office. She was supervised by the Board of Commissioners.
Bonnie Ashworth became the Interim Director of Human Resources for the County in February 2008, when the former director, Jane E'del, was terminated from the position during her 90-day probationary period. Ms. Ashworth retired from her position as Interim Director on August 15, 2008.
Following the retirement of Ms. Ashworth, Chief Clerk McCue served as Interim Director of Human Resources while the County sought candidates to fill the position permanently.
During the meeting of the Board of Commissioners on September 10, 2008, Financial Solutions (the firm hired to conduct an audit of the County's Human Resources Department) presented its report to the Commissioners. Financial Solutions also assisted the County in conducting the search for a new Director of Human Resources.
The deadline for candidates to apply for the position of Director of Human Resources was September 12, 2008. As of the September 10, 2008 commissioners' meeting, the County had received more than 60 applications. Those applications were screened and selected candidates, including Ms. Chan, were interviewed.
The defendant Commissioners appointed Ms. Chan, by a unanimous vote, to the position of Director of Human Resources for the County.
Ms. Chan began her employment as Director of Human Resources on January 5, 2009. Plaintiff's direct supervisor was County Administrator Douts. She also reported to the Commissioners.
The Commissioners and Mr. Douts directed plaintiff to work toward addressing the issues and deficiencies highlighted in the September 10, 2008 Financial Solutions audit report. Specifically, plaintiff was directed to, among other things, "address unequal employment conditions for employees, and address discrimination, harassment, disparate and different treatment of employees on the basis of sex, age, disability and race/color."
During the seven-month period when plaintiff was employed by the County, she "attempted to remedy, correct and eliminate the discrimination and hostility in the work place at Defendant County" by: (1) "hir[ing] staff to train and educate Lancaster County employees and Department Heads relative to discrimination and harassment in the workplace"; (2) "recom-mend[ing the] institut[ion of] corrective actions for employees who harassed [other] employees and/or retaliated against employees [who] reported discrimination"; (3) "recommend[ing the installation of] a handle bar in the handicap stall in the public restroom [of the county courthouse] after a disabled employee fell"; (4) "recommend[ing the] remov[al] and reassign[ment of] the sole female Park Ranger[, Jennifer Stoltz, ] from a perpetuating hostile work environment"; (5) "instituting policies that were missing or omitted from County practice[, ] including procedures relative to wage and hour law, the Family Medical Leave Act, discipline and due process;" and "[i]nvestigat[ing] sexual harassment allegations that were the basis for a pending lawsuit against Lancaster County."
Plaintiff also sought, by email sent May 7, 2009 to Director of Facilities Keith Harner and County Administrator Douts, to have a curtain installed in a first-floor, handicap-accessible restroom in the county courthouse which did not have a door on it. Plaintiff sought to install the curtain in order to provide privacy to anyone who used that stall; she did not believe that installing the curtain would render the stall ADA-compliant.
By emails sent May 8, 2009, Mr. Douts directed Mr. Harner to install the curtain, and Mr. Harner replied that he would do so. The May 7, 2009 email from plaintiff to Mr. Harner was to follow up on a work-order request which plaintiff submitted "a few months" before.
Jennifer Stoltz was the only female ranger in the Parks Department. Ms. Stoltz reported incidents of alleged sexual harassment to plaintiff, who, in turn, reported Ms. Stoltz's allegations to the Commissioners during an executive session meeting.
Benecon was the County's health-insurance broker during plaintiff's tenure as Director of Human Resources.
On May 27-28, 2009 plaintiff, together with County Administrator Douts, traveled to State College, Pennsylvania and attended a conference of the County Commissioners Association of Pennsylvania ("CCAP"). During the CCAP conference, plaintiff and Mr. Douts were scheduled to have dinner with representatives from Benecon.
Before plaintiff left for the conference, her husband, Joe DeModena, asked her what plans she had during the conference and she told him about the Benecon dinner. In response, plaintiff's husband mentioned that he had recently sold a car to a Benecon employee. Plaintiff did not know the name of the employee prior to the CCAP conference and she received no indication that there were any problems related to the vehicle purchase.
During the Benecon dinner, plaintiff spoke with Dave Wuenschel, a Benecon representative, and, while speaking about their respective families, plaintiff mentioned to Mr. Wuenschel that her husband was a car salesman and had recently sold a car to a Benecon employee.
Several days after CCAP conference, plaintiff's husband informed her that the Benecon employee was unhappy with the vehicle purchased and had lodged several complaints about the purchase.
The following day, plaintiff's husband informed her that, although the problems with the car had been fixed, the Benecon employee was still not happy and had written emails to the dealership and the Better Business Bureau. The follow-up issues raised by the Benecon employee did not impact Mr. DeModena's sales commission.
After the CCAP conference, plaintiff had a ten-minute telephone conversation with Mr. Wuenschel, during which they discussed the possibility of Benecon sponsoring some portion of a "Family Fun Day" for the County's employees which plaintiff was working to organize. Mr. Wuenschel inquired about whether plaintiff intended to bring her family to the event. Plaintiff told Mr. Wuenschel that she would likely bring her children, but that her husband would not able to attend because he worked on Saturdays (the day the event was scheduled). Mr. Wuenschel then asked plaintiff how her husband was doing and if he was selling more cars to Benecon employees. Both laughed at Mr. Wuenschel's comment.
Plaintiff told Mr. Wuenschel that she did not know of any other Benecon employees having purchased a vehicle from her husband, and that the employee who had purchased the vehicle was unhappy with the purchase and had lodged a complaint with the Better Business Bureau.
Mr. Wuenschel asked whether the Better Business Bureau complaint could be dropped by the employee. Plaintiff responded that she did not know whether such a complaint could be dropped. Plaintiff told Mr. Wuenschel not to worry about the complaint. Mr. Wuenschel did not mention taking any action concerning the Benecon employee at that time, and plaintiff did not ask him to do so.
However, on that call, Mr. Wuenschel asked plaintiff for the name of the Benecon employee and plaintiff told him it was "Michelle", though she did not know the last name. Mr. Wuenschel told plaintiff that he knew a Michelle that worked for Benecon who was a very nice woman was going through some difficult personal issues at the time.
After this first telephone conversation with Mr. Wuenschel, plaintiff told her husband about the buyer's issues and suggested to her husband that he do everything he could to address any issues with her vehicle.
Several days after the first telephone conversation between plaintiff and Mr. Wuenschel, Mr. Wuenschel called the County's human resources department and left a message with an employee requesting that plaintiff return his call.
Plaintiff returned Mr. Wuenschel's call and, during their second telephone conversation, Mr. Wuenschel told plaintiff that he spoke with a Michelle, but that she had not purchased a car recently. Plaintiff asked Mr. Wuenschel who he had spoken to, and he responded that he spoke to Michelle Hamilton. Plaintiff told Mr. Wuenschel that she believed the buyer's name to be Michelle Immel.
Mr. Wuenschel apologized for the confusion and said it was embarrassing not to know all of Benecon's employees. Mr. Wuenschel immediately told plaintiff he would call back and then ended their second telephone conversation.
Five or ten minutes after the second telephone conversation between plaintiff and Mr. Wuenschel, Mr. Wuenschel called plaintiff back, this time with Terry Bowling on the line by speaker-phone. Mr. Bowling was Michelle Immel's manager at Benecon.
Mr. Bowling opened this third call by asking "What's going on?" Plaintiff responded that she "was just trying to help Michelle out" and that she "just wanted to resolve the issue." Mr. Bowling then stated that "they were going to talk to Ms. Immel but that he need to talk to Benecon's Human Resources Department first." Plaintiff inquired as to why they would do so, and Mr. Bowling chided plaintiff "to the effect of You're in HR, don't you think I should talk to our HR department first.'"
Plaintiff did not understand why Mr. Bowling needed to talk with Benecon's human resources department, but she hesitantly and jokingly responded, "Of course, you always talk to HR before saying anything or doing anything because we know everything." All three laughed in response. This third call among plaintiff, Mr. Wuenschel, and Mr. Bowling lasted less than five minutes. Plaintiff did not tell either Mr. Wuenschel or Mr. Bowling that anything should be done to Michelle Immel by Benecon.
Subsequent to this third conversation, someone from Benecon spoke with Michelle Immel concerning her automobile ...