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Leese v. Commonwealth, Department of Insurance

United States District Court, M.D. Pennsylvania

July 18, 2019

CHERIE LEESE, Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA Department of Insurance Defendant.

          MEMORANDUM OPINION

          ROBERT D. MARIANI, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Defendant's Motion for Summary Judgment (Doc. 36) is pending before the Court. With this motion, Defendant requests that the Court grant judgment in its favor and enter an order closing the case. (Doc. 36 at 1; Doc. 36-2 at 1.) In her single-count Complaint, Plaintiff alleges that Defendant violated Title Vll's antiretaliation provision when it retaliated against her after she filed and settled a prior case. (Doc. 1 at 1.) For the reasons discussed below, the Court concludes that Defendant's motion is properly denied.

         II. STATEMENT OF UNDISPUTED FACTS[1]

         Plaintiff began her employment at the Pennsylvania Department of Insurance in 1988. (Doc. 37 ¶ 1; Doc. 44 ¶ 1.) During her employment, she was subjected to sexual harassment from a male superior. (Doc. 42 ¶ 2; Doc. 47-1 ¶ 2.) She filed an internal complaint alleging sexual harassment by Ronald Gallagher, followed by a Pennsylvania Human Relations ("PHRC") complaint filed in 2013 asserting that she had been retaliated against for reporting the harassment. (Doc. 37 ¶ 2; Doc. 44 ¶ 2; see also Doc. 42 ¶ 3; Doc. 47-1 ¶ 3.) Plaintiff was not disciplined for being sexually harassed by Gallagher. (Doc. 37 ¶ 3; Doc. 44 ¶ 3.) Donna Fleischauer, the Department's Director of Human Resources at the time, investigated Plaintiffs harassment complaint, and Brad Harker, Department Counsel, was aware of the complaint and handled the matter once Plaintiff filed with the PHRC. (Doc. 42 ¶¶ 8-9; Doc. 47-1 ¶¶ 8-9.) After Plaintiff filed the 2013 PHRC charge, she and Defendant entered into a settlement agreement. (Doc. 37 ¶ 4; Doc. 44 ¶ 4.) Harker negotiated and drafted the settlement agreement. (Doc. 42 ¶ 11; Doc. 47-1 ¶ 11.) As part of the settlement agreement, Plaintiff agreed to resign. (Doc. 37 ¶ 4; Doc. 44 ¶ 4; see also Doc. 42 ¶ 12; Doc. 47-1 ¶ 12.) The agreement included a provision that Plaintiff not seek employment in any agency under the Governor's jurisdiction. (Doc. 37 ¶ 5; Doc. 44 ¶ 5.) The agreement included the following provisions:

a. (1)... Leese shall not apply for, seek or accept any employment in the future with any Department, Board or Commission under the Governor's jurisdiction. Leese may seek employment with any independent state agency outside the Governor's jurisdiction, and the Department agrees that it will not interfere with any such attempts....
b. (3) . . . Leese further agrees that no further complaints, charges, claims, litigation, or any other type of actions will be filed or otherwise initiated or instituted against the Department and/or its current or former individual employees in any forum arising from or relating to the Department's employment of Leese- c. (6) The Department shall not contest any application for unemployment compensation benefits filed by Leese.
d. (7) Any documents reflecting the previous disciplinary actions imposed by the Department on Leese in her Commonwealth Official Personnel File shall be removed.
e. (8) The parties understand and agree that the terms of this Settlement Agreement are confidential, [2] subject, however, to disclosure only to the extent required by applicable state or federal laws, and/or as necessary to professional tax advisors or accountants.
f. (9) The parties agree to refrain from disparaging each other regarding any matter related to the underlying case or the [sic] Leese's employment with the Commonwealth of Pennsylvania Insurance Department. This paragraph shall apply to any business and/or job reference that the Department issues relative to Leese.

(Doc. 37 ¶ 6; see also Doc. 44 ¶ 6.)

         There are a number of different "coding options" in the "SAP" system which is a transactional list of dates of hire, change of jobs, and separations. (Doc. 37 ¶ 7; Doc. 44 ¶ 7.) Plaintiff refers to the system as the state's electronic personnel system. (Doc. 42 ¶ 17; Doc. 47-1 ¶ 17.) The codes are used to separate an employee from the payroll system. (Id.) The code used for Plaintiff was "ZH-07" which indicates "voluntary resignation contact former agency." (Doc. 37 ¶ 8; Doc. 44 ¶ 8; see also Doc. 42 ¶ 19; Doc. 47-1 ¶ 19.) The code allowed the Department to monitor whether Plaintiff was applying with any entities within the Governor's jurisdiction. (Doc. 37 ¶ 9; Doc. 44 ¶ 9.) Other codes could have been used, including "ZH-01" which reflected "resigned with notice." (Doc. 42 ¶ 22; Doc. 47-1 ¶ 22.)

         Commonwealth agencies aside from the one from which the employee resigned had access to the electronic personnel file of an employee who resigned including access to the code affixed to the separation. (Doc. 42 ¶ 18; Doc. 47-1 ¶ 18.) According to Governor's Management Directive 580.23, individuals cannot be rehired into state employment unless, inter alia, they left their prior position "in good standing." (Doc. 42 ¶ 19; Doc. 47-1 ¶ 19.)

         Ordinarily, Fleischauer decided what code to affix to a resigned employee's electronic personnel file. (Doc. 42 ¶ 24; Doc. 47-1 ¶ 24.) Plaintiffs separation was the only time that Fleischauer was instructed on what code to use in SAP. (Doc. 37 ¶ 12; Doc. 44 ¶ 12.) Fleischauer does not remember any other employees who had that code used upon their separation. (Doc. 37 ¶ 13; Doc. 44 ¶ 13.) As she was directed, Fleischauer put the code in the SAP. (Doc. 37 ¶ 14; Doc. 44 ¶ 14.) The code itself does not mention the settlement agreement. (Doc. 37 ¶ 16; Doc. 44 ¶ 16.) The settlement agreement is confidential, subject to certain exceptions. (Doc. 37 ¶ 17; Doc. 44 ¶ 17.)

         The settlement agreement itself did not define what agencies were under the Governor's jurisdiction. (Doc. 37 ¶19; Doc. 44 ¶ 19.) Plaintiff believed the Office of Administration ("OA") website did not correctly list the entities under the Governor's jurisdiction.[3] (Doc. 37 ¶ 20; Doc. 44 ¶ 20.) The Liquor Control Board ("LCB") was listed as being under the Governor's control but it was not. (Doc. 37 ¶ 21; Doc. 44 ¶ 21.)

         Plaintiff applied for numerous state and private sector jobs, and she had approximately ten interviews with state employers. (Doc. 37 ¶¶ 53-55; Doc. 44 ¶¶ 53-55.) She was not selected for any of the positions. (Doc. 37 ¶ 55; Doc. 44 ¶ 55.) State job interviews included those for two positions with the LCB, several positions with the PUC, and at least two positions with the Board of Probation and Parole. (Doc. 37 ¶ 56; Doc. 44 ¶ 56.)

         Fleischauer sent calls about Plaintiff to Harker, but Plaintiff believed Fleischauer could have handled the calls herself. (Doc. 37 ¶ 31; Doc. 44 ¶ 31.) Although Harker handled reference inquiries on behalf of the Department (Doc. 42 ¶ 29; Doc. 47-1 ¶ 29), Fleischauer testified that she knew that some state agencies saw the coding and raised questions about it (Doc. 42 ¶ 28; Doc. 47-1 ¶ 28). In handling a code-related inquiry, Harker would first ask the inquirer if the agency on whose behalf the inquiry was made was within the Governor's jurisdiction. (Doc. 42 ¶ 30; Doc. 47-1 ¶ 30.) If the inquirer told Harker the represented agency was outside the Governor's jurisdiction, Harker indicated in an email that he would advise the inquirer "I can make no comment relating to Ms. Leese's separation." (Doc. 42 ¶ 31; Doc. 47-1 ¶ 31.)

         Plaintiff believes that having an attorney respond to anyone calling to ask about her sends up red flags and looks bad, even if the person is told "no comment." (Doc. 37 ¶ 36; Doc. 44 ¶ 36.) Plaintiff testified that the Department could have checked for her new employment after the fact or could have contacted individual departments in other agencies to see if she was applying for positions or if she had a job there. (Doc. 37 ¶ 30; Doc. 44 ¶ 30.)

         LCB documents concerning consideration of Plaintiff for a position contain the notation "not allowed to consider... unusual code." (Doc. 42 ¶ 32; Doc. 47-1 ¶ 32.) Pennsylvania Public Utilities Commission ("PUC") documents related to its consideration of Plaintiff for employment contain an email which stated she was "a strong candidate" and a subsequent notation which stated "Red Flags during OPF review. Not hiring." (Doc. 42 ¶¶ 33-34; Doc. 47-1 ¶¶ 33-34.)

         Communications between Harker and the Pennsylvania State Employee Retirement System ("PSERS") pursuant to PSERS' inquiries about Plaintiff indicate that Harker provided information relevant to an entity under the governor's jurisdiction when, in fact, PSERS was not. (Doc. 42 ¶ 35; Doc. 37-1 ¶ 35.)

         Harker perceived that there were several disciplinary issues with Plaintiff. (Doc. 37 ¶ 40; Doc. 44 ¶ 40.) Fleischauer testified that there were "some issues" with Plaintiff. (Doc. 37 ¶ 42; Doc. 44 ¶ 42.) Incidents include Plaintiffs arrest during a lunch hour.[4] (Doc. 37 ¶ 44; Doc. 44 ¶ 44.) Plaintiff protested the related one-day suspension she received. (Doc. 37 ¶ 45; Doc. 44 ¶ 45.) No. official discipline was issued to Plaintiff as the result of a predisciplinary conference in April 2014. (Doc. 37 ¶ 51; Doc. 44 ¶ 51.) The one-day suspension was reversed as part of Plaintiffs settlement agreement. (Doc. 37 ¶ 52; Doc. 44 ¶ 52.)

         When briefing the Department's former chief counsel, Harker informed him that Plaintiff had filed a sexual harassment complaint, she was a "problem employee," she "was not a pleasant person to deal with," and prior counsel wanted to get rid of her "just as bad as we did." (Doc. 42 ¶¶ 37-38; Doc. 43 ¶¶ 47-48.)

         III. STANDARD OF REVIEW

         Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). "As to materiality, .... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record ... or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert, denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

         However, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

         "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of evidence." Anderson, 477 U.S. at 255. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may be in issue, or when ...


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