United States District Court, M.D. Pennsylvania
D. MARIANI, UNITED STATES DISTRICT JUDGE
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.
STATEMENT OF UNDISPUTED FACTS
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
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,  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.)
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.)
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 ¶
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 ¶
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. (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.)
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.)
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.)
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.)
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
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
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. (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.)
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 ¶¶
STANDARD OF REVIEW
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).
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
"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
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