United States District Court, E.D. Pennsylvania
JUDITH K. MALONEY, Plaintiff,
CITY OF BETHLEHEM, PENNSYLVANIA, Defendant.
HENRY S. PERKIN, Magistrate Judge.
This matter is before the Court on Motion for Summary Judgment filed by the Defendant, City of Bethlehem, on July 30, 2014. Plaintiff's Response to Defendant's Motion for Summary Judgment was filed on August 14, 2014. On October 22, 2014, counsel for both parties was ordered to file Memoranda of Law on issues which the Court needed clarification in order to decide the pending Motion for Summary Judgment as to Plaintiff's claim for violations of her procedural due process rights. Having reviewed and considered the contentions of the parties, the Court is prepared to rule on this matter.
Plaintiff, Judith K. Maloney ("Plaintiff" or "Ms. Maloney"), alleges that Defendant, City of Bethlehem ("City"), violated her rights by terminating her employment as Director of Health in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (Count I); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e which prohibits Sexual Discrimination (Count II); the retaliation provisions of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (Count III); the retaliation provisions of the Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981(A), et seq. (Count IV); and her right to procedural due process under the Fourteenth Amendment of the United States Constitution, 42 U.S.C. § 1983 (Count V).
In her Opposition to Defendant's Motion for Summary Judgment, Plaintiff formally requests the dismissal with prejudice of her claims for age discrimination and related retaliation in Counts I and II of her Complaint and her claim for Title VII gender discrimination in Count III of her Complaint. See Pl.'s Mem. Law, p. 1 n.1. Accordingly, those claims will be dismissed with prejudice in an Order following this Memorandum Opinion. Plaintiff's remaining claims for review by this Court are for Title VII retaliation (Count IV) and for Fourteenth Amendment procedural due process (Count V).
The Court has jurisdiction over Ms. Maloney's federal claims pursuant to 28 U.S.C. § 1331.
II. STANDARD OF REVIEW.
Summary judgment is appropriate "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). The court must determine whether "the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Favata v. Seidel, 511 F.App'x 155, 158 (3d Cir. 2013) (quoting Azur v. Chase Bank, USA, Nat'l Ass'n, 601 F.3d 212, 216 (3d Cir. 2010) (quotation omitted)). An issue is "genuine" if a reasonable trier of fact could return a favorable verdict for the non-moving party. Mengel v. Reading Eagle Co., CIV.A. 11-6151, 2013 WL 1285477 (E.D. Pa. Mar. 29, 2013), appeal dismissed (Oct. 30, 2013)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S. at 248). Once the movant "points to evidence demonstrating no issue of material fact exists, the non-moving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor." Favata, 511 F.App'x at 158 (quoting Azur, 601 F.3d at 216 (internal quotation marks omitted)). "In evaluating the motion, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Guidotti v. Legal Helpers Debt Resolution, LLC, 716 F.3d 764, 772 (3d Cir. 2013) (internal quotation omitted). The Court's task is to determine whether there exist any factual issues to be tried, not to resolve disputed issues of fact. Anderson, 477 U.S. at 247-49. Whenever a factual issue arises which cannot be resolved without a credibility determination, the Court must credit the non-moving party's evidence over that presented by the moving party. Id. at 255. If there is no factual issue, and if only one reasonable conclusion could arise from the record regarding the potential outcome under the governing law, summary judgment must be awarded in favor of the moving party. Id. at 250.
Plaintiff is a resident of Bethlehem, Pennsylvania and holds a Bachelor of Science degree in nutrition from Misericordia College, a master's degree in public health from East Stroudsburg University and a law degree from Widener University. Maloney began working as the City of Bethlehem Health Director in January 2004. She interviewed with the City of Bethlehem Board of Health; she then had to go through an approval process with the State Department of Health and go before city council for confirmation in late January 2004.
Maloney was hired under Act 315 of the Third Class City Code, which states that the Board of Health oversees the Health Director. The decision regarding hiring Maloney was made by the Board of Health and Dr. David Beckwith. The Council Agenda and Council Minutes of January 20, 2004 indicate a resolution was sponsored, approving Judith K, Maloney chosen by the Board of Health. When Maloney was first hired, her immediate supervisor was Tony Hanna, Director of Community and Economic Development, who reported directly to the mayor. Maloney also had a direct reporting relationship to the Board of Health. When Tony Hanna moved to the Bethlehem Authority, Joe Kelly became Maloney's direct supervisor.
In the end of 2001 early 2002, Maloney commenced a relationship with Michael Correll, and she and her children moved in with Correll in June 2008. In 2008, Maloney had a driving under the influence ("DUI") charge for which she completed a drug and alcohol evaluation as part of an ARD program. She was suspended by the City in 2008 and was asked to go through employee assistance counseling which she completed; then she became - in her own words - a "better, healthier person." After Maloney was suspended for the DUI, when she returned to work several city employees from other departments told her they thought it was unfair how she was treated and that male employees such as Jeff Ritz, Mike Palladino, a manager in the water treatment plant, and Tom Marshall, none of whom were union members, had not been suspended for similar conduct. In 2008 Maloney told her then-manager, Tony Hanna, that she believed that she was being treated differently than male employees; Hanna said it was out of his control.
Around mid-February of 2012, Maloney contacted Turning Point, a domestic abuse organization, because she was concerned that she was the victim of abuse. On March 8, 2012, Maloney and Correll had dinner at a local restaurant and Maloney consumed no alcoholic beverages. She left the restaurant before Correll, who had consumed alcoholic beverages, and after he arrived home a short time later, they had a verbal and physical altercation. Two uniformed police officers arrived at their residence and said they had to take Maloney to the police station. Maloney was charged with simple assault. The preliminary hearing was held in mid-July 2012, at which time all charges against Maloney were withdrawn.
After the March 8, 2012 incident, Maloney began counseling at Turning Point, beginning with phone counseling in March 2012 and then face-to-face counseling through the late fall and early winter of 2012. She also attended a facilitated support group at Turning Point. She never received counseling for anger management.
Following her March 8, 2012 arrest, Maloney was suspended with pay and placed on administrative leave. In a detailed Memorandum to the Mayor dated May 24, 2012, Joseph Kelly, Director of Community and Economic Development and Maloney's immediate supervisor, recommended Maloney's termination. His recommendation was made due to her lack of candor to City police about the March 8, 2012 incident which he considered to be a Code of Ethics violation, Maloney's prior misconduct involving a drunk driving incident and harassment charges which involved misuse of a City cell phone surrounding issues with Corell, her boyfriend. Kelly also told the Mayor in his May 24 Memorandum that a 2010 City assessment found that domestic violence had the greatest impact on community health and noted the incongruity of the Director of Health Bureau managing program grants for domestic violence, given Maloney's public domestic partnership issues leading to criminal charges over the years, and special consideration given to her following multiple arrests in 2008 when Kelly was a member of the City Solicitor's office. Kelly also advised the Mayor that the City had dismissed three police officers during the the prior year for lying during investigations, that Maloney had enforcement and prosecution powers as the Director of Health Bureau, and that Maloney should be held to a similar standard as the dismissed police officers. Kelly noted that, in addition to her dishonesty during the March 12 investigation and her prior misconduct while the Director of Health Bureau, Maloney had a considerable history of staff complaints about her and discontent with her leadership which he felt would compromise her ability to return to her leadership position.
During a May 24, 2012 meeting attended by Kelly, Assistant City Solicitor Christopher C. Cooper, Kathleen Garman, personnel director, Maloney and Maloney's counsel, Melissa Rudas, Esquire, Kelly said the City wanted Maloney to resign in lieu of termination. Maloney and her counsel were made aware that the City would not consider reinstating her to the Health Director position, but rather would consider concessions in the area of payment for unused leave to which she was not otherwise entitled and certain other provisions concerning how the City would disclose information about her in future employment inquiries, and a draft settlement agreement was forwarded to Maloney's counsel on May 24, 2012 by Assistant City Solicitor Cooper. At the meeting Maloney stated that male employees with far more serious charges were treated differently and that she was a victim of domestic violence. Maloney and her counsel stated that when the male employees were involved in similar incidents they were treated differently and Kelly and Garman looked surprised. Based on information Maloney had gathered while working at City Hall and public records, Maloney believed that the City had treated male employees involved in alleged domestic violence or similar incidents differently. She was referring to Tom Marshall, Tom Kiefer, John Schleicher, Scott Sterner and Jeff Fritz.
In response to the City's settlement offer, Maloney's counsel, Attorney Rudas, asked to have until June 7 for Maloney to make a decision concerning the proposed Settlement Agreement. Rudas then made a plea directly to the Mayor by letter dated May 31, 2012, that the Lehigh County District Attorney recognized that Ms. Maloney was a victim in the March 8, 2012 domestic incident and withdrew the criminal charges which had been filed against her. Rudas provided press statements in March and July of 2012 in which she portrayed Maloney as the victim in the domestic violence incident and suggested that the charges were being dropped and that Correll had assaulted and injured Maloney the night of the incident. In response to the press coverage generated by Attorney Rudas, a spokesperson for the Lehigh County District Attorney's Office provided a July 24, 2012 press statement after the charges were withdrawn which negated the portrayal of Maloney as the victim and instead indicated that the charges were withdrawn because Maloney continued to receive counseling and not because the District Attorney's Office believed that she was a victim of domestic violence or that there was insufficient evidence to meet the burden of proof. Deputy District Attorney Juliet Dowling e-mailed a statement to the press stating "The charges were withdrawn because I felt that it was an appropriate resolution to the case because Ms. Maloney accepted responsibility and was getting therapy."
Maloney was paid while on suspension and following the disposition of the criminal changes, by letter to City Solicitor Jack Spirk dated August 27, 2012, Attorney Rudas demanded $180, 000 to settle Maloney's labor case, medical benefits until December 31, 2013 and other terms. On August 28, 2012, Maloney called the City's Safety, Wellness and Training Coordinator Jennifer Swett intimating that she was forwarding an EEO complaint and planned to file the complaint with the state, but wanted to report it to the City per protocol. On August 28, 2012, then Assistant City Solicitor Jennifer Doran wrote Attorney Rudas concerning Maloney's telephone call to Jennifer Swett and inquiring as to the EEO issue. On August 29, 2012, Attorney Rudas replied that her client simply wanted to know who the EEOC Compliance Officer was, that Maloney had not filed a Complaint and that Maloney remained committed to amicably resolving her employment issue. The August 29, 2012 letter also indicated that, in addition to the settlement proposal made the prior week, Maloney was willing to return to her position as City Health Director with "no strings attached" and a guarantee that there would be no hostile work environment.
In response to the Rudas demand, on October 2, 2012, Assistant City Solicitor Doran reiterated the City's position and notified Attorney Rudas that a date for a pre-determination hearing needed to be arranged after October 12, 2012. On October 18, 2012, Attorney Rudas criticized the City's negative response to Maloney's settlement demand and the City's position that a pre-determination hearing would go forward, and threatened that if the City terminated Maloney, an EEOC complaint would be filed and litigation would follow. On October 19, 2013, Assistant City Solicitor Doran replied, indicating that the City did not fear the threat of litigation and further related that over the past few months she (Doran) has attempted to obtain responses from Rudas on the matter and is repeatedly told that there is someone on vacation, that there had been no opportunity to speak with Maloney or that Maloney's counsel was in the midst of trials. So, given the delays, Doran related that it was not unreasonable to request a response within 10 days to the proposal sent to her and noting that the pre-determination hearing would be to discuss Ms. Maloney's situation and permit any updates before a decision was made.
In a letter dated October 23, 2012 from Attorney Rudas to Assistant City Solicitor Doran, she indicated that her client wished to continue negotiations. Attorney Rudas also stated that she and Maloney met with Joseph Kelly on May 24, 2012 and knew that his recommendation was for termination and that she had been discussing Maloney's case with Mayor Callahan and City Solicitor Spirk and felt that a predetermination hearing was not required, because Maloney's position did not require any such predetermination. In response, Doran wrote to Rudas again October 26, 2012, indicating that the City intended to set a date for the predetermination hearing in short order and, if there is a revised proposal, Rudas should advise immediately.
Notification that the hearing/meeting was scheduled for November 7, 2012 was provided to Maloney by letter dated October 26, 2012 from her supervisor, Joseph Kelly. In that notification, Kelly also stated that the City was advised that circumstances may have changed since the May 24, 2012 initial meeting, noting inconsistencies in what Maloney told police, that serious charges were made against a member of management, and that Maloney had a right to respond to the charges and provide additional information. On November 1, 2012, Attorney Rudas wrote to Kelly stating that Maloney was not willing to participate in the hearing and copied the Mayor, the City Solicitor and others. On November 5, 2012, Assistant City Solicitor Doran sent correspondence to Attorney Rudas, indicating the City's intention to go forward with the hearing and that if Attorney Rudas wanted a separate meeting to discuss the case, one could be scheduled for the following week. Attorney Rudas replied to Doran on November 5, 2012 that Maloney would participate in the meeting only if she could record it. On November 7, 2012, Doran replied that the City did not agree that Maloney could record the meeting.
On November 12, 2012, Attorney Rudas notified the City that she could not be present for the hearing. On November 13, 2012, Doran provided four alternate dates and replied that one final time would be given for the hearing. On November 14, 2012, Attorney Rudas sent Attorney Doran a letter memorializing their discussion and indicating that she and her client would appear for a hearing on November 26, 2012. Attorney Rudas also stated that Maloney and Rudas were willing to negotiate a ...