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Lamb v. Montgomery Township

United States District Court, E.D. Pennsylvania

December 23, 2016

DEBORA L. LAMB, Plaintiff,
v.
MONTGOMERY TOWNSHIP, LAWRENCE J. GREGAN, KEVIN COSTELLO AND THREE JOHN AND THREE JANE DOES, Defendants.

          OPINION

          WENDY BEETLESTONE, J.

         Plaintiff Deborah Lamb brings this case against her former employer, Montgomery Township (the “Township”), her former supervisors, three unidentified John Doe defendants, and three unidentified Jane Doe defendants[1] under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. 2000e et seq. and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 951 et seq. Lamb claims that she was subjected to a hostile work environment, sex discrimination, and retaliation for protected activity. Before the Court is Defendants' motion for summary judgment on all of Plaintiff's claims. In opposition to that motion, Plaintiff produced the Declaration of Maria Brogna (“Declaration”), which sets forth both expert opinion and factual information. Defendants have filed a Motion to Strike the Declaration, as well as a Daubert Motion to preclude Brogna's testimony.

         I. FACTUAL BACKGROUND

         A. Plaintiff's Termination

         Plaintiff was hired in June 1998 as a laborer in the Township's Public Works Department. In 2001, she was promoted to Traffic Signal Assistant. Although she was advised by her boss that she would be promoted to Facilities Foreman, a male colleague, Glenn Heberlig, got that position instead in January 2005. That same month, Plaintiff was promoted to Traffic Signal Coordinator and Heberlig became her supervisor. Plaintiff remained in that position until she was fired for theft in 2013 after an incident in which Heberlig's iPhone went missing from the Public Works Department break room. The police were called to investigate. A detective spent the day interviewing employees, including Plaintiff, and searching all employees' vehicles, including Plaintiff's. The detective obtained consent from all employees - male and female - to search their vehicles. During Plaintiff's interview with the detective, she acknowledged that she had been in the break room alone that morning, but denied taking the phone.

         Two days later, a Township resident found the missing iPhone. He turned the phone into the police station and showed the investigating detective exactly where he had found it - on a grassy area near the intersection of Enterprise and Commerce, around 0.3 miles from the Public Works Department building, about five feet from the curb.

         The detective advised Heberlig that his phone had been found, but did not tell anyone else at the Department about the discovery. The detective returned to the Department's front office to find out from the director's administrative assistant the times at which various crews had left the garage the morning of the theft. Plaintiff was in the front office area during this conversation, but asserts that she did not overhear it.

         The detective went from the Department building to a position from which he could see the intersection where the phone had been found. About 20 minutes later, he saw Plaintiff driving down Commerce Drive in the Township's bucket truck. He watched as Plaintiff turned from Commerce onto Enterprise, slowed the truck down almost to a stop, pulled very close to the curb where the phone had been found, looked out of the truck window towards the curb, and then drove the truck around the block and back to the Public Works Department building. He followed her back to the building and confronted her about what he had seen. Plaintiff explained that she was on her way to repair a pedestrian crossing light but slowed down to see if she had the necessary paperwork with her; then, realizing that she had left the paperwork at the Public Works Department building, she returned there. The detective asked her to go to the police station and, when she did, to provide a saliva sample for DNA testing. Plaintiff consensually provided a saliva sample. As she provided the sample, Plaintiff told the detective that she might have handled Heberlig's iPhone when it was lying on the break room table. Heberlig later stated that he never left his iPhone unattended in the break room or let Plaintiff handle it. The DNA report, which came back after Plaintiff had been terminated, was inconclusive in that neither Plaintiff nor Heberlig's DNA was found on the phone.

         Plaintiff was placed on paid administrative leave on March 1, 2013 while the Township conducted an internal investigation into the incident. The detective conducted additional interviews, including with Township employee Don Johnson, who had been working with Plaintiff the morning of the theft. Johnson reported that, around 8:00 a.m., just as they were about to leave the building, Plaintiff retrieved her gloves from her personal car. When she threw them on to the dashboard of the truck, they made a “clunk” sound, as if something solid was inside one of the gloves. Johnson also mentioned that Plaintiff seemed to be in a hurry to get out of the yard.

         Meanwhile, the Township had conducted its own internal investigation into the iPhone incident, interviewing and taking statements from all employees who were present on the day of the theft, including Plaintiff. The investigators created a timeline of employee movements on the morning of the theft. A number of employees indicated that they believed Plaintiff to be responsible for taking the iPhone. On March 18, 2013, the investigating detective relayed his suspicion to the Township that Plaintiff was responsible for the theft.

         The Standards of Conduct in the Township Employee Handbook explicitly prohibit theft of a co-worker's property. Given the investigations' conclusions, on March 20, 2013, Plaintiff was notified by letter that she may be subject to disciplinary action up to and including discharge. The letter explained that based on the Township's internal investigation, the police report, and other information relating to the criminal investigation, the Township believed that she had taken the iPhone. Plaintiff was provided with an opportunity to review the notes of her interviews and to provide additional information. She took advantage of that opportunity and, on March 26, 2013, sent a response letter denying the theft, noting derogatory comments made about her by coworkers regarding her sexuality, and indicating that the Township was retaliating against her for injury-related work restrictions and a workers' compensation claim stemming from that injury.

         On April 4, 2013, Plaintiff was terminated for the theft of Heberlig's iPhone, as well as her “lack of candor” during the Township's internal investigation into that incident. The letter notifying Plaintiff of her termination came from Lawrence Gregan, the Township Manager, who made the decision to terminate her. Prior to making that decision, Gregan spoke with Human Resources staff and labor counsel and, while taking into consideration Plaintiff's denials as expressed in her March 26, 2013 letter, ultimately concluded that the findings of the police and Township investigations warranted her termination.

         Plaintiff contends that the Township normally follows a progressive discipline policy, and that its failure to do so prior to terminating her represents a policy violation. Defendants point out that the policy does not “guarantee . . . any specific procedure the Township may use before discharge, ” and maintain that Plaintiff was terminated rather than progressively disciplined because the theft represented a “significant break in trust.” Plaintiff argues that the Township's termination policy mandated oral notification of the termination, followed by written notice. Defendants acknowledge that Township policy recommends oral and written notification of termination, and admit that Plaintiff was not orally notified. Defendants respond, however, that this represents a single, minor deviation from the procedure set forth in the Employee Manual, and reiterate that the Manual explicitly does not guarantee any specific termination procedure for non-uniformed employees like Plaintiff.

         After Plaintiff's termination, she was initially denied unemployment compensation because the Township reported to the Office of Unemployment Compensation (“UC”) Benefits that she had been terminated for willful misconduct. Later in June 2013, having concluded that the Township had provided insufficient information to show that Plaintiff had committed a dishonest act, the Office of UC Benefits determined that Plaintiff was after all eligible for unemployment compensation.

         B. EEOC Proceeding and Instant Suit

         On July 3, 2012, Plaintiff filed a dual charge of discrimination with the EEOC and the Pennsylvania Human Relations Commission (“PHRC”). The charge alleged discrimination based on sex, hostile work environment, and retaliation for prior EEO activity. The parties do not dispute that Plaintiff properly exhausted her administrative claims and timely filed suit in this Court on December 23, 2015.

         C. Previous Thefts in the Public Works Department

         Plaintiff describes a number of incidents perpetrated by coworkers during the course of her employment at the Public Works Department that she characterizes as thefts. She contends that these incidents exhibit a pattern of sex discrimination whereby Defendants treated male employees more favorably than female employees when they were victims or suspected perpetrators of theft.

         1. Theft of $500 Cash From Heberlig

         At some point during or after 2010, $500 was taken from Heberlig's lunchbox. The Director of the Public Works Department, Kevin Costello, held a staff meeting about the incident. He then placed an “honesty chest” in the break room, announcing to staff that whoever took the money should “put it back, no questions asked.” At Heberlig's request, the police were not called to investigate. There was no final determination that a theft had actually occurred, and no employee was implicated in the incident.

         2. Photos of Plantiff's Son

         In early 2008, two photos of Plaintiff's son were taken from her work area. The parties dispute whether the photos went missing or were torn up and placed on Plaintiff's desk. Plaintiff complained of the incident to Costello. The parties agree that this incident is properly characterized as a theft. They disagree as to whether Costello investigated the incident. Defendants maintain that Costello conducted an informal internal investigation. Plaintiff says he did not. They agree that Costello did not locate the pictures or identify anyone responsible.

         3. Scrap Fund

         During Plaintiff's employment at the Township, Public Works Department employees sold scrap metal - discarded Township property such as street lights, traffic control signs, and rusted metals - and deposited the cash into a bank account, the balance of which hovered around $400. This “scrap fund” was used to cover the cost of the Department's staff parties and birthday presents.

         There is some question about who knew of the fund's existence. Costello recollects notifying Gregan of the fund, but Gregan maintains that he was not aware of it until he heard Costello's deposition testimony in this case. Gregan acknowledged that any funds generated should have been deposited into the Township's general funds. The account has now been closed and the funds transferred to the Township's Finance Department.

         Plaintiff characterizes selling the scrap metal - which was Township property, albeit discarded property - and depositing the receipts into a private account as theft. Defendants dispute this characterization. Plaintiff contends that, while no male employees were terminated for scrapping metals, one female employee - Carol Berger - was fired for taking cash from the scrap fund. Defendants deny that Berger was terminated for taking money from the fund.

         4. Work on Personal Vehicles and Homes

         During Plaintiff's employment with the Township, Public Works Department employees performed maintenance work on personal vehicles and homes during the work day. She characterizes this conduct as theft, contending that it occurred during paid work time. Plaintiff acknowledges that she and her colleagues worked on Plaintiff's personal vehicle and home, but asserts that this occurred during break times or after work.

         Defendants recognize that Costello permitted employees to engage in personal tasks during the work day, but maintain that employees would make up for the hours later in the day or by using vacation, sick, or “comp” time. Plaintiff testified that she did not review records to determine whether the employees she observed working on personal vehicles or homes made up for the time in this manner.

         5. Firearms Taken from Police Armory

         In 2002 and 2003, four male Township police officers took firearms from the Police Department armory. A sergeant gave some of the firearms, which had been turned in by a civilian, to other officers and took the rest for himself. Plaintiff characterizes this incident as a theft. The Township conducted an investigation into the incident in 2003. None of the officers involved were criminally prosecuted.

         6. Other Thefts During Plaintiff's Employment

         Plaintiff recalls two other thefts that occurred during her employment. First, at some point prior to 2004, Heberlig had a SpongeBob SquarePants toy taken from his desk. Plaintiff does not recall “anyone doing anything about it or Glenn [Heberlig] pushing the issue.” Costello informally investigated the missing toy, but did not document the incident in a report. Second, Plaintiff recalls that at some point during her employment with the Township, prior to 2004, Costello's Administrative Assistant reported change missing from her desk. It is not clear from the record whether this incident was reported or how the Township responded.

         D. Other Instances of Alleged Sex ...


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