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Dolan v. Penn Millers Insurance Co.

United States District Court, M.D. Pennsylvania

May 19, 2014

NANCY DOLAN, Plaintiff


MALACHY E. MANNION, District Judge.

Nancy Dolan spent approximately six years working for Penn Software and Technology Services (PSTS) as a sales account executive and sales manager. During those six years, her working relationship with one co-worker in particular, Michael Conway, was less-than-amicable. Over her final year with the company, their interactions became increasingly tense as Ms. Dolan alleged a marked rise in Mr. Conway's rudeness and crass behavior. Her boss, Frank Joanlanne, usually intervened on her behalf, but she claims he showed less concern for her complaints as he was heavily involved in the sale of PSTS. She also felt Mr. Conway and Mr. Joanlanne were excluding her from key decision-making meetings. Ms. Dolan filed complaints with PSTS's Human Relations Department, the Equal Employment Opportunity Commission (EEOC), and the Pennsylvania Human Resources Commission (PHRC) alleging gender discrimination. The company conducted an investigation and found her claims to be unfounded. Months after she filed her complaint, PSTS was sold and the plaintiff's job was eliminated. She filed this suit claiming gender discrimination, retaliation, and "the cat's paw"[1] liability.

Presently pending before the court is a report and recommendation, (Doc. 70), to which the plaintiff has filed objections. (Doc. 71).[2] Judge Blewitt's report recommends that the defendants' motion for summary judgment, (Doc. 60), be granted. The plaintiff challenges the report in five respects: (1) the findings of fact do not conform with Fed. R. Civ. Pro. 56; (2) Defendant Penn Millers Insurance Co. (Penn Millers) is a proper defendant because it was a fully integrated enterprise with PSTS; (3) the plaintiff has established a prima facia case for a gender-based hostile work environment; (4) the plaintiff has presented sufficient evidence to sustain her claim of retaliation; and (5) the report erred by not analyzing "the cat's paw" liability.

For the reasons discussed below, the court will ADOPT IN SUBSTANTIAL PART Judge Blewitt's report and recommendations and the defendants' motion for summary judgment will be granted in full.


Before discussing the facts of the case, the court is compelled to address the plaintiff's response to the defendants' statement of material facts. (Doc. 60). This response is neither short, nor concise. It contains extensive rebuttals to many of the facts and additional information even when admitting a fact as true. Many of these immaterial and irrelevant rebuttal statements are argumentative and cite either to numerous pages of depositions, general volumes of documents, or contain no citation at all. The proper way to dispute a material fact is to present a cite to the record that tends to call into question the alleged undisputed fact, not engage in long-winded, unnecessary, and unsupported responses. Moreover, parts of the plaintiff's response are confusing and inconsistent. For example, in responding to paragraph 23 of the defendants' material facts (incorrectly numbered 22 in the plaintiff's response), the plaintiff first states the fact is "Admitted, " then says "Denied as stated." (Doc. 64, p. 13).

It also appears the plaintiff may have written some of these responses herself. References to the plaintiff alternate between the first and third person throughout this document, despite it having been submitted by counsel.[3] It also appears counsel left some of plaintiff Dolan's editorial comments in the document rather than removing them. There are a total of five such comments scattered throughout this filing. For example, on the fourth page, there is a note in the margin that reads: "Don should we take out this reference not sure it helps us...only PSTS moved to the Baltimore Drive location not penn millers...up to you." (Doc. No. 66, p. 4). That inquiry is linked to a statement that says in part "[t]he companies then moved to Baltimore Drive in Wilkes-Barre, PA... which is where they were located when the sale was made to Synergistics." (Id.). Unfortunately, counsel failed to correct this obvious factual error. Whether the companies maintain separate office spaces is significant given the plaintiff contests that Defendant Penn Millers and PSTS are a single entity. Filings should not contain communications between counsel and his client, however they should contain accurate information.

In sum, the plaintiff's responsive statement of material facts does not comply with Local Rule 56.1. Any facts that are summarily denied without proper citation to contrary evidence within the record are deemed admitted. Additional facts the plaintiff alleges without proper citation will not be considered. With those preliminary matters resolved, the court will now address the merits of the case.

The plaintiff's employment with PSTS began in 2003 when she was hired as a sales account executive. (Exh. 2, p. 24)[4]. During her time with the company, she reported to Frank Joanlanne, the President of PSTS. Approximately three years later she was promoted to the position of Sales Manager and began dealing directly with PSTS customers on a regular basis. She also received regular raises, regular bonuses, and generally received good reviews from Mr. Joanlanne throughout her five-year employment with the company. (Exh. 6, p. 160, 175).

The plaintiff worked with Michael Conway, the Manager of Network Services, throughout her time at PSTS. Mr. Conway nor Mr. Joanlanne ever made any sexual advances toward the plaintiff or engaged in any inappropriate sexual activity with her. The initial conflict between the plaintiff and Mr. Conway arose in 2004 after she complained to Mr. Joanlanne that Mr. Conway would not work with a woman. She also alleged he tried to exclude her from a single meeting with another employee. (Exh. 3, p. 12). In response, Mr. Joanlanne made it clear that Mr. Conway and the plaintiff were equals within the company.

The plaintiff claims she made several complaints about Mr. Conway to Mr. Joanlanne throughout the years, but it is unclear when these complaints were made and the context of such complaints. (Exh. 5, p. 186). She claims that Mr. Conway ignored her during meetings, was non-responsive to her requests, was generally rude, would curse often within her earshot, and sometimes tried to exclude her from various meetings. (Exh. 3, p. 25; Exh. 4, p. 124-25). In terms of specific incidents, the plaintiff claims there were two meetings, one in 2004 and another in 2008, where Mr. Conway intentionally tried to exclude her. (Exh. 4, p. 135).

Sometime in the fall of 2007, Mr. Joanlanne and Penn Miller Holding Company began having secret discussions to sell PSTS. (Exh. 18, p. 19). A prospective buyer, Synergistics Networks, Inc., was interest in buying PSTS's book of business. During the negotiations leading up to the sale of PSTS, Synergistics requested the plaintiff sign a non-disclosure, non-raiding, and non-solicitation agreement (NDA). On November 14, 2007, Mr. Joanlanne gave the plaintiff the NDA. He said he wanted to tell her something and needed her to sign the NDA, but she refused to do so. The NDA reads in pertinent part:

The seller and the employees of the Business to be employed by the Seller (or affiliate thereof) after the closing of the Transaction shall execute prior to such closing appropriate non-compete/non-disclosure/non-solicitation and confidentiality covenants to be made for the benefit of the Buyer. In addition, as a condition of the execution of the Definitive Agreement and the consummation of the Transaction, one of the Seller's key employees, Nancy Dolan shall have executed for the benefit of the Buyer, the Seller, and the affiliates of the Seller, a non-disclosure/non-solicitation/agreement in form and substance satisfactory to the Buyer related to the Seller's customers/clients (the Non-disclosure/Non-solicitation Agreement, which Non-disclosure/Non-solicitation Agreement shall be for a term of no less than five (5) months from the date of Closing.

(Exh. 19). Mr. Joanlanne planned on offering the plaintiff a "stay-on" bonus if she signed the NDA, but because she did not, no bonus was offered. No other employee of PSTS was offered a stay-on bonus. Mr. Conway and Mr. Joanlanne both signed NDA agreements when the sale was subsequently finalized.

After refusing to sign the NDA, the plaintiff was allegedly excluded from various closed door meetings that she thought should have included her. She claims to have asked about the meetings and why she was not invited, but could not get an answer. The plaintiff avers there were as many as ten meetings between Mr. Conway and Mr. Joanlanne from which she was excluded between 2007 and 2008. (Exh. 4, p. 119). She does not know what was discussed in those meetings, but says she was involved in nearly all meeting prior to that time. Unbeknownst to her at the time, it appears these meetings involved the potential sale of PSTS to Sygeneristics.

According to the plaintiff, Mr. Conway's cursing increased significantly about the time she was presented with the NDA, but Mr. Conway never cursed directly at her. Despite the allegations against Mr. Joanlanne, the plaintiff recalls he would stick up for her, (Exh. 4, p. 121), make sure Mr. Conway would not discriminate against her, ( Id., p. 122), and when he became involved, Mr. Conway was kept on track and their work relationship would improve. ( Id., p. 129).

On February 1, 2008, Mr Joanlanne presented the plaintiff with a Separation and General Release Agreement, which included a non-compete clause as part of a severance package. She would receive $21, 807 in consideration for the severance and was given twenty days to accept or reject the offer. However, she was required to continue working at PSTS until the sale of the company was final and complete. The separation agreement notified the plaintiff that "PSTS has disclosed to Employees that it is in the process of attempting to sell substantially all the business assets of PSTS and that the Employee's employment is anticipated to be terminated by PSTS, effective as of the closing of such sale." The plaintiff did not sign this agreement within the twenty-day window and it was withdrawn.

On February 22, 2008, the plaintiff claimed that a contractor sexually harassed her. She reported the inappropriate sexual comments to Mr. Conway first, and then to Mr. Joanlanne. (Exh. 60, p. 47-48). That same day the contractor was fired and conducted no further business with PSTS. The plaintiff agreed that this response was adequate, appropriate, and timely. She does not allege any further inappropriate sexual conduct during the rest of her time with PSTS. ( Id., p.46).

A little over a month later, the plaintiff sent Mr. Joanlanne a letter that outlined the separation terms that would be agreeable to her. This included PSTS supporting the plaintiff's application for unemployment benefits, paying the plaintiff's full salary and estimated commissions (totaling $95, 119 per year) for a maximum of three years or until she found other employment (for a maximum total of $285, 357), paying for all earned vacation time, reimbursing her for any legal fees incurred in reviewing documents PSTS wished her to sign, three letters of recommendation, and $50, 000 to pursue her MBA degree if she so desired. In making these demands, the plaintiff also alleged Mr. Conway had created a hostile work environment based on her gender. She also restated ...

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