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Donahue-Cavlovic v. Borough of Baldwin

United States District Court, W.D. Pennsylvania

October 26, 2017

BOROUGH OF BALDWIN, et al., Defendants.


          Mark R. Hornak United States District Judge.

         Plaintiff Katie Donahue-Cavlovic ("Plaintiff), a patrol officer of nearly fifteen years with the Baldwin Borough (Pennsylvania) Police Department ("Department"), brings this action alleging sex discrimination, sexual harassment, and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, codified at 42 U.S.C. § 2000e etseq., and 42 U.S.C. § 1983 against Baldwin Borough ("Baldwin" or "Borough") and Michael Scott, Chief of the Department ("Chief Scott"). Plaintiff alleges a litany of derogatory, lewd, or offensive comments directed at her or made in her presence over her years in the Department, instances where she was denied training or equal wages, and retaliatory actions taken against her. Defendants Baldwin and Chief Scott move for summary judgment on all four (4) counts of Plaintiff s Complaint. For the reasons that follow, Defendants' Motion for Summary Judgment is granted in its entirety.

         I. Legal Standard

         Summary judgment is appropriate where there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A factual dispute is genuine and material if it '"affects the outcome of the suit under the governing law' and could lead a reasonable jury to return a verdict in favor of the nonmoving party." Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         Initially, the moving party bears the burden of proving that the record presents no genuine dispute of material fact. Willis, 808 F.3d at 643. Once that burden has been met, the nonmoving party must set forth specific facts in the record showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.ll (1986) (quoting Fed.R.Civ.P. 56(e)). If the nonmoving party does not meet this burden, and the record as a whole could not lead a reasonable jury to find for the nonmoving party, the court must enter summary judgment against the nonmoving party. See Willis, 808 F.3d at 643. Inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587.

         II. Background

         Plaintiff began working as a patrol officer for the Department in 2003, where she remains employed. (ECF No. 33, ¶ l.)[1] In 2003, Plaintiff commenced a romantic relationship with Lieutenant Craig Cavlovic ("Lieutenant Cavlovic"), who is also employed by the Department, and the two were married in 2005. (Id. ¶ 2.) From approximately 2009 or 2010 through 2014, Lieutenant Cavlovic directly supervised Plaintiff, his wife. (Id. ¶ 3.)

         During her time as an officer with the Department, Plaintiff has filed two separate EEOC charges against the Borough: the first in 2007, and the second in 2015. (Id. ¶¶ 4, 7.) It is the second EEOC charge that underlies this case, but a brief discussion of the basis for the first charge is relevant here. After Plaintiff and Lieutenant Cavlovic were married, the Borough required Plaintiff to go on Lieutenant Cavlovic's health insurance plan rather than continue to receive her own benefits. (Id. ¶ 4.) Other officers who opted to receive health insurance through their spouse's plan received a reimbursement or "buy back" amount, but Plaintiff did not. (Id. ¶¶ 4-5.) Plaintiff first filed a grievance through her union against the Borough in 2006, followed by the sexual discrimination charge with the EEOC in 2007. (Id.) The 2006 grievance went through arbitration, and the arbitrator found in Plaintiffs favor. (Id. ¶ 5.) The EEOC discrimination charge was resolved by a Release and Settlement Agreement. (Id.) The 2007 charge did not include a claim of hostile work environment or sexual harassment. (Id. ¶ 6.)

         Plaintiff filed the second EEOC charge of sex-based discrimination and retaliation on June 15, 2015. (Id. ¶ 7.) The instances of discrimination alleged in this complaint are as follows.

         A. Disparate Treatment Allegations

         To support her disparate treatment action, Plaintiff has alleged various incidents of unequal treatment, denied training, and retaliation. This Section will discuss these incidents in turn.

         Plaintiff first alleges she was paid unequal wages in the form of lower healthcare benefit reimbursements. Since January 2010, following the arbitration of Plaintiff s healthcare benefits compensation discussed above, Plaintiff received the "buy back" amount for not participating in the Borough's health insurance plan. (Id. ¶ 62.) After Plaintiff had children, her buy back amount was not adjusted to the higher family rate available under the Police Collective Bargaining Agreement. (Id. ¶¶ 63-64.) On August 19, 2014, Plaintiff sent a letter to the Borough Manager to ask why male officers with children received a higher healthcare reimbursement amount than she did. (Id. ¶ 64.) In response, Plaintiff s healthcare reimbursement amount was adjusted to the family rate in her December 4, 2014, paycheck. (Id. ¶ 65.)

         Second, Plaintiff claims three instances of denied training between 2011 and 2015. First, in 2011, when Plaintiff was pregnant, she asked to be placed on the child car seat installation detail. (Id. ¶ 55.) That request was denied. (Id.) Next, in November 2014, Plaintiff and two male police officers requested assignment to the firearms instructor detail and firearms instructor training. (Id. ¶ 70.) The firearms training officer did not see a need for any additional firearms instructors and subsequently denied the requests of all three officers. (Id.) Lastly, in April 2015, Plaintiff and Officer Brian Henderson requested to attend a patrol rifle proficiency course. (Id. ¶ 71.) After Chief Scott informed Plaintiff that the course was a firearms instructor development course, and not a patrol rifle proficiency course, she did not request to attend a patrol rifle proficiency course. (Id. ¶¶ 71-72.)

         At some point (the date is unclear from the record), Plaintiff was also prohibited from patrolling with Officer Henderson, which she believes was because of her sex. (Id. ¶ 56.) Chief Scott informed Lieutenant Cavlovic that it "didn't look right" for Plaintiff and Officer Henderson to patrol together. (Id. ¶¶ 60-61.) However, the record reflects that in 2013 continuing through the present, the usual practice within the Borough was for police officers to patrol alone, and Plaintiff has identified no other male officers who patrolled together in the same car. (Id. ¶¶ 57-58.)

         Plaintiff further alleges she was retaliated against after an incident on July 8, 2014, when Plaintiff delivered packets of information to Borough Councilmembers addressing a possible unfair labor practice in the Borough. (Id. ¶ 78.) Plaintiff made this delivery on Officer Henderson's behalf. (Id.) On Plaintiffs next work day following this delivery, she and Officer Henderson were called into Chief Scott's office and disciplined. (Id. ¶ 79.) Chief Scott threatened to terminate them for violating the chain of command, insubordination, and theft of government property by delivering the papers to the "other side." (Id.) A month after this incident, in August 2014, Plaintiff and three other officers were selected for random drug testing. (Id. ¶¶ 81, 84.) Plaintiff believes she was selected in retaliation for delivering the packets. (Id. ¶ 82.) Borough police officers are selected for drug testing through computer-generated random selections performed by an independent third party, the St. Clair Occupational Health Medicine Center. (Id. ¶ 83.) Borough officials have no role in the random selection, other than to receive and deliver notices of the selections to officers. (Id.) Plaintiff was also randomly selected for drug testing in August 2015, but does not believe that was a retaliatory selection. (Id. ¶ 85.) Plaintiff did not test positive for drugs in either 2014 or 2015. (Id. ¶ 86.)

         Lastly, in September 2014, Lieutenant Cavlovic informed Plaintiff that Chief Scott had received a complaint from a citizen about her. (Id. ¶ 75.) Plaintiff e-mailed Chief Scott and asked to see a copy of the complaint. (Id.) Chief Scott responded that the citizen never actually filed a complaint, although Plaintiff suspected that he had encouraged the citizen to do so. (Id.) The would-be complainant told Plaintiff that she didn't write a complaint because "what [the citizen] was saying wasn't necessarily true." (Id. ¶ 76.)

         B. Sexual Harassment Allegations

         In April 2013, Plaintiff learned from Officer Henderson that Officer Collier had said "[Plaintiff] should just tuck her labia between her legs and take the class, " referring to an active shooter training course. (Id. ¶ 8.) Plaintiff lodged a complaint about the comment in an e-mail to Chief Scott, pursuant to the Department's sexual harassment policy. (Id. ¶ 9.) Chief Scott retained an attorney to conduct an investigation of the incident, and Officer Collier was disciplined. (Id. ¶¶ 9-10.)

         In the beginning of 2014, a string of incidents occurred within the same week at work, which Plaintiff believes was sexual harassment. (Id. ¶ 12.) First, Plaintiff found a condom wrapper on the floor of the backseat of the police vehicle she generally preferred to drive. (Id. ¶ 13.) Later that week, Plaintiff found dark, possibly fake blood in the toilet in the police substation's restroom, which she used every day. (Id. ¶¶ 20-21.) Finally, Plaintiff found a "wad of napkins" in between the driver's seat and passenger seat of her police vehicle. (Id. ¶¶ 27-28.) When she reached in to grab the napkins, Plaintiff realized they were stuck together with blood and long strands of blond hair. (Id. ¶ 28.)

         The record also reflects three incidents involving Chief Scott that Plaintiff believes constitute sexual harassment. First, at some point in 2013, Chief Scott was wearing a Scottish kilt. (Id. ¶ 37.) He commented to Plaintiff that he was "authentic, " which she understood to mean he was not wearing any undergarments beneath his kilt.[2] (Id. ¶¶ 37-39.) Next, in June 2013, during a discussion in which Plaintiff was present, Chief Scott remarked that a Borough Councilman was "popular with the ladies" because he "has a big d**k." (Id. ¶¶ 40-41.) Plaintiff did not want to make a complaint under the sexual harassment policy about the comment because the matter involved Chief Scott. (Id. ¶ 43.) The third incident of alleged sexual harassment involving Chief Scott occurred on December 4, 2014, when Chief Scott informed Lieutenant Cavlovic, Plaintiffs husband, about a rumor circulating in Bethel Park (a neighboring community) that Chief Scott and Plaintiff were having an affair together. (Id. ¶ 48.) It was apparent to Lieutenant Cavlovic that Chief Scott thought the rumor was ridiculous. (Id. ¶ 50.) Plaintiff has no knowledge of Chief Scott repeating the rumor to anyone other than Lieutenant Cavlovic on this one occasion. (Id. ¶ 51.)

         A fourth incident in the record involves Chief Scott only insofar as he was present when it occurred. In May 2014, Lieutenant Kearns apologized to Lieutenant Cavlovic for a disparaging remark that he made about Plaintiff at a meeting attended by the Mayor, Lieutenant Kearns, and Chief Scott. (Id. ΒΆΒΆ 45-46.) Kearns stated that he thought Plaintiff and Lieutenant Cavlovic should ...

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