United States District Court, M.D. Pennsylvania
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For Maurice Burton, Plaintiff: Nathan C. Pringle, Jr., LEAD ATTORNEY, Harrisburg, PA.
For Pennsylvania State Police, For Kathy Jo Winterbottom, Defendants: M. Abbegael Giunta, Office of Attorney General, Harrisburg, PA.
SYLVIA H. RAMBO, United States District Judge.
Presently before the court is Defendants' joint motion for summary judgment (Doc. 38) challenging the adequacy of Plaintiff's claims against his former employer and a state police investigator for discrimination, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (" Title VII" ), and the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 951
(" PHRA" ). Defendants also challenge Plaintiff's freedom of association claim, brought pursuant to 42 U.S.C. § 1983, against the state police investigator. Disposition of this case turns on Plaintiff's failure to acknowledge that his employer had a legitimate prerogative to curb his admitted continued excessive socialization in the workplace. For the reasons set forth below, Defendants' motion will be granted.
Plaintiff Maurice Burton (" Plaintiff" ) is an African-American male, formerly employed as a State Trooper with the Pennsylvania State Police (" PSP" ).  (Doc. 19, ¶ 9.) Plaintiff entered the State Police Academy in 1993 when he was 28 years old, and was promoted to the rank of Corporal in 2004. (Burton Dep. at pp, 9-11; Doc. 19, ¶ ¶ 14-15.) In 2006, he transferred to PSP headquarters to join the Bureau of Research and Development, which is made up of two divisions: a Planning Division and a Programming Division. (Burton Dep. at p. 12; Doc. 19, ¶ 16.) At the time pertinent to the instant matter, Lieutenant Walter Margeson (" Lt. Margeson" ) was the Director of the Planning Division, and Lieutenant Carl Harrison Jr. (" Lt. Harrison" ) was the Director of the Programming Division. (Burton Dep. at pp. 13-14.) The Bureau Director, Major Richard Stein (" Major Stein" ), supervised both Divisions. ( Id.) In 2007, Plaintiff accepted the position of Supervisor of the Policies and Procedures Section of the Programming Division. ( Id. at pp. 13, 15-17.) In this capacity, Plaintiff supervised approximately six subordinates, most of whom were enlisted members  of PSP. (Burton Dep. at pp. 16-17.)
During the course of his employment at PSP headquarters, Plaintiff became acquainted with Pamela Yandrich (" Yandrich" ), a Caucasian female who was employed as the E-Library Administrator at the headquarters. (Doc. 39, ¶ 14; Doc. 19, ¶ 17.) Plaintiff's job duties necessitated frequent interaction with Yandrich and, as a result, the two became friends and often socialized while in the office. (Doc. 19, ¶ ¶ 18-19.) At some point in 2007, several of Plaintiff's superiors noticed that Plaintiff and Yandrich " were spending an extraordinary amount of time together." (Doc. 44-15, p. 26.) In an interview conducted by Defendant Lieutenant Kathy Jo Winterbottom (" Lt. Winterbottom" ), an investigator with the Internal Affairs Division at PSP, Major Stein explained,
It started to be kinda a running joke. You have to keep a bucket of cold water handy just to separate the two 'cause it was out of control. . . . They have a friendship that they are letting affect the workplace . . . I had a lot of people come up to me and make comments about it.
( Id.) Initially, Major Stein and Lt. Harrison addressed the matter informally by asking Plaintiff and Yandrich to reduce the amount of time they spent together in the office. ( Id. at p. 22.) According to Lt. Harrison, Plaintiff and Yandrich generally
would comply for a couple of weeks before resuming the same behavior. ( Id.)
In his deposition, Plaintiff recalled Lt. Harrison approaching him on numerous occasions in 2007 and 2008 concerning his frequent and lengthy conversations with Yandrich.  (Burton Dep. at p. 25.) Plaintiff characterized Lt. Harrison's comments as unfair because nearly all of his conversations with Yandrich were " work-related," yet they were constantly told to watch the amount of time they spent together, while no one reprimanded the white members in the Bureau who " just talk[ed] constantly." ( Id. at pp. 28-30.) In the fall of 2008, after being addressed once again for spending too much time talking to Yandrich, Plaintiff approached Lt. Harrison regarding the constant criticism. During the conversation, Plaintiff questioned the reason certain white employees, who Plaintiff concedes were supervised by Lt. Margeson rather than Lt. Harrison, were not being similarly reprimanded. ( Id. at pp. 29-30.) Lt. Harrison responded: " I can control my Division. I don't control the other Division. [Does] somebody over there [in the Planning Division] screw around too much? . . . [T]hat's not my bailiwick." (Doc. 44-15, p. 23.)
During another conversation pertaining to Plaintiff's interactions with Yandrich, Lt. Harrison, who is also an African-American male, stated, " any time a black man talks to a white woman, there's an issue." (Burton Dep. at p. 29; Doc. 44-15, p. 23.) Plaintiff noted in his deposition that Lt. Harrison was PSP's Equal Employment Opportunity (" EEO" ) liaison for the Bureau (Burton Dep. at p. 29); however, he was unsure of the context of Lt. Harrison's comment, explaining, " I don't know if [Lt. Harrison]'s saying it's an issue [to him], but I don't know if it's just a society thing or he's saying that's a problem here [at PSP]. I don't know." (Doc. 44-15, p. 11.) In his deposition, Lt. Harrison clarified that he was giving Plaintiff advice on a personal level.  ( Id. at p. 23; see Harrison Dep. at p. 26.)
Shortly after the conversation between Lt. Harrison and Plaintiff, Major Stein acknowledged Lt. Harrison's remark, but told Plaintiff, " That's not who I am, and that's not how I operate. . . . [W]e're here to put out a good product and do a good job and that's it."  ( Id.) However, Major Stein added, " I'd hate to see you leave though you do good work." (Burton Dep. at pp. 31-32.) In relaying the conversation to Lt. Winterbottom, Plaintiff said he interpreted Major Stein's last remark as a threat, noting, " Why [else] would he say that? It's not like I gave him an inclination I was leaving."  (Doc. 44-15, p. 11.)
In fact, at the time the conversation occurred, Plaintiff was in the process of testing for the rank of Sergeant, a promotion which requires a candidate to achieve a certain score and rank on a
written and oral exam.  At the oral portion of the exam in May 2008, Lt. Margeson, the Director of the Planning Division, was an assessor on one of Plaintiff's panels. Plaintiff immediately objected to Lt. Margeson's inclusion based on his concern that Lt. Margeson held a negative bias toward him because of Plaintiff's interactions with Yandrich.  ( Id. at pp. 58-60.) Although the site administrator provided Plaintiff with several options,  Plaintiff elected to keep Lt. Margeson on the panel and have a consultant examine the scores. ( Id. at Ex. 3.) Plaintiff concedes that Lt. Margeson did nothing that was out of line or that threw Plaintiff off track during the exam. (Burton Dep. at pp. 66-68.) Nevertheless, following the exam, Plaintiff contacted the Bureau Director to discuss his concerns and she offered to have Lt. Margeson's scores removed from the panel. (Burton Dep. at p. 72, Ex. 4; Stephens Dep. at p. 60.) Plaintiff declined, and again chose to have Lt. Margeson's score remain. ( Id.)
Plaintiff's results were less than impressive. He received scores ranging between 3.86134 and 4.79720 out of nine possible points for his performance between both panels of the Oral Board. (Burton Dep. at Ex. 5, pp. 2-3.) After standardizing the scores and re-scaling, the highest overall test score out of all the candidates was a 67 and the lowest was a 33.11615. (Burton Dep. at Ex. 5, p. 4.) Plaintiff received an overall score 44.15257 and was ranked 244 out of 476 (Burton Dep. at pp. 75-76, Ex. 5, p. 4.); consequently, Plaintiff did not receive the promotion. 
Plaintiff remained in his position as Corporal Supervisor in the Programming Division and continued to engage in lengthy conversations, albeit mostly work related, with Yandrich. In response to the conversations, Lt. Harrison issued Plaintiff and Yandrich written reprimands after his multiple informal censures went unheeded. The Supervisor's Notation  issued to Plaintiff provided as follows:
I have continued to take heat this past year over the amount of time that you and Mrs. Pamela J. Yandrich spend in each other's office. For the most part, I have defended your actions as you both continue to do good work.
I decided that this week, I would simply observe and not say anything. On Tuesday, the 25th of November, I watched as you spent a total of three and a half hours with Pam in your office before she came out.
On Wednesday, the 26th of November, she was in your office for a total of two hours and 20 minutes before I went to lunch. I also observed that you stood in her office for at least one and a half hours in the afternoon.
The Bureau as a whole is under scrutiny, and I cannot logically justify the amount of time being spent in each other's office.
I have asked the both of you to monitor the amount of time spent together. It is now getting to the point where it is affecting the things that I do. I cannot allow this to continue.
I am not going to dictate the amount of time that you interact. However, you must be much more reasonable in the amount of time spent together.
This is not open for discussion or debate. Simply watch what you are doing.
(Burton Dep. at Ex. 1.) While Lt. Harrison insisted that he issued the Supervisor's Notation on his own accord, he acknowledged that Major Stein had some influence in the matter. (Harrison Dep. at p. 12.)
In his deposition, Major Stein could not recall if he specifically approved the Supervisor's Notation, but testified that he " certainly would have approved it" given the circumstances. (Stein Dep. at p. 13.) As he explained: " What I tried to do . . . as I [have] done in the past, in other circumstances involving other individuals, was to try to handle something like that informally. Not make a big deal out of it, just get conformance and we'll move on." ( Id. at p. 13.) However, in this instance, he observed no change in Plaintiff and Yandrich's behavior:
I started watching them; mainly only whenever I would go back for coffee or when I would go back to talk to one of the Lieutenants. If I would go to talk to [Yandrich], it really seemed that 99% of the time I'd go in to talk to one of the two, [Plaintiff] was in [Yandrich's office.] It was clear to me that they did not reduce their frequency or duration at all.
(Doc. 44-15, p. 26.)
Several days after receiving the Supervisor's Notation, Plaintiff met with Lt. Harrison and again questioned why he and Yandrich were constantly being addressed for talking to one another while other people were not disciplined in any fashion. (Doc. 44-15, p. 10.) Plaintiff theorized the reason for this disparate treatment was a " race issue," and stated that he believed Major Stein was " using [Lt. Harrison] to wash his hands of that." ( Id.) Plaintiff said it was clear he was being targeted since the white members were not being reprimanded for excessive socialization. ( Id.) He also added that Major Stein was " walking around making" inappropriate sexual comments yet no one was disciplining him (Burton Dep. at p. 35), explaining that, on one occasion, Major Stein said, " I'm offended when a woman doesn't swallow" and made another comment about his " girl thinking he had a big penis." (Doc. 44-15, p. 13.) Lt. Harrison denied that Plaintiff reported Major Stein's comments to him. (Doc. 44-15, pp. 21-22.)
A few weeks later, Major Stein approached Corporal Jack Reese (" Cpl. Reese" ) at the Bureau's 2008 holiday party and asked if he would be interested in
taking Plaintiff's supervisory position within the Programming Division. (Doc. 44, p. 15.) Cpl. Reese declined the offer and later told Plaintiff about the conversation. ( Id.)
In late December 2008, Lt. Harrison asked Plaintiff to participate in the January 2009 Cadet Oral Boards in Philadelphia. (Burton Dep. at pp. 43-44.) Plaintiff suggested that Lt. Harrison should instead send Trooper Melissa Sanzick, who had been assigned to cover the January Farm Show, to the Oral Boards since she lived near Philadelphia and to send another individual to the Farm Show. ( Id.) Lt. Harrison agreed with Plaintiff's suggestion and assigned Trooper Sanzick to the Oral Boards.  ( Id. at p. 44.) However, to Plaintiff's surprise, Lt. Harrison chose Plaintiff to take Sanzick's place at the Farm Show. ( Id.) Plaintiff challenged the assignment, arguing that he should be exempt as a Corporal Supervisor.  ( Id. at pp. 44-45, 50.) In response to Plaintiff's opposition, Lt. Harrison informed Major Stein that Plaintiff resisted covering either assignment. ( Id.) Because the special order pertaining to the Farm Show assignment was posted for Troopers and Corporals, and Plaintiff was a Corporal, Major Stein confirmed that assigning Plaintiff to that detail was appropriate, notwithstanding Plaintiff's supervisor title. (Stein Dep. at pp. 15-16.)
On January 8, 2009, Plaintiff authored a letter to Lt. Harrison in which he raised complaints regarding his treatment at the Bureau. (Burton Dep. at p. 48; Doc. 41-3, pp. 19-20.) Plaintiff wrote, in pertinent part, as follows:
I didn't understand why you were sending a Supervisor to the Cadet Oral Boards when you told me in 2007 (after I volunteered for Cadet Oral Boards upon becoming Supervisor) that you didn't send your Supervisors out and that you needed them here. And, your practice since then . . . was to always comes to me and ask me who was next up for whatever detail that was going on at that time. You told me that my name was given to you to attend the Oral Boards. . . . When I asked who gave you my name you replied " the Major." . . . I then asked you if the Major was giving me a shot. You said, 'You didn't know.'  I then stated to you that I
felt like it's either discrimination or retaliation or both. I thought it might be retaliation due to the inappropriate things I've heard going on around here and related as much to you in our conversation. And now, all of a sudden, the practice that you've had the last couple years has changed, and now I'm singled out specifically by Major Stein. I also think its discrimination due to you specifically saying that Major Stein singled me out and the fact the majority of this Bureau consists of white Caucasian males who I see standing around daily for lengthy periods of time (sometimes with their Supervisors) talking, and nothing ever being said or done about that. But, as soon as I start talking to Mrs. Yandrich, it's a problem. You also told me, a few months ago, that you made the following statement to Major Stein[,] 'As soon as a Black man talks to a White Wom[a]n, it's a problem.' This same statement was also repeated to me by Major Stein.
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It should also be noted that you, on numerous occasions, stated that I do good work and that you didn't have a problem with my work, as my most recent EPR (which was completed by you) reflects. I also feel as the EEO Liaison when things are brought to your attention you choose to do nothing about them. I've spoken to several Supervisors and in all the years they've been in this Bureau the practice has been that unless a Supervisor volunteered for an assignment, nonsupervisory members were selected to attend. And they too believe this to be a form of retaliation. . . . This, along with your practice of always inquiring who's up next for assignment and telling me you don't send your Supervisors out are reasons for me to be concerned. As of January 7, 2009, my detail has been switched to the Farm Show . . . I feel also as a Supervisor I should have preference as to what detail that I'm ordered to attend. These reasons are justification for obtaining counsel. 
(Doc. 41-3, pp. 19-20.) The following day, Lt. Harrison responded by letter, stating:
[I]t should be obvious to you that the manpower situation in the Bureau is different than it was several years ago. This is going to require that you do more work.
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The Farm Show Detail calls for Trooper/Corporal assignment. You are a Corporal; and can be assigned as needed. The needs of the Department come first, and you do not get a say in the matter if I, as the Division Director, make an assignment. The fact that I have asked for input in the past, does not mean that I need to or will in the future.
You are not losing money or having to travel for this assignment. You have not been stripped of your rank. Yet you feel that you have been retaliated against. By your logic, any assignment given that you are not in agreement with would be retaliation.
You conveniently omit details in your correspondence. ...