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Mazur v. Southwestern Veterans Center

United States District Court, W.D. Pennsylvania

September 12, 2019

MARGARET MAZUR, Plaintiff,
v.
SOUTHWESTERN VETERANS CENTER & DEPARTMENT OF MILITARY AND VETERANS AFFAIRS, Defendants.

          OPINION

          JOY FLOWERS CONTI SENIOR UNITED STATES DISTRICT COURT JUDGE

         I. Introduction

         Pending before the court in this racial discrimination action filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e(17) and 42 U.S.C. § 1981, are dueling motions for summary judgment filed by pro se plaintiff Margaret Mazur (“Mazur”) and by her employers, defendants Southwestern Veterans Center (“SWVC”) and the Department of Military and Veterans Affairs (“DMVA” and together with the SWVC, “defendants”). The case arises out of an incident in which $500.00 went missing from the SWVC. Defendants initially suspected that Mazur or her coworker Sharon Warden (“Warden”) stole or lost the $500.00. Mazur alleges that she did not steal or lose the money and was unfairly disciplined and blamed for the missing money because of her race. Mazur also alleges that defendant harassed her and retaliated against her because she fought against their treatment of her with respect to her role in the missing $500.00.

         For the reasons set forth fully in this opinion, defendants' motion for summary judgment will be granted and Mazur's summary judgment will be denied. The undisputed factual allegations in this case show that Mazur is not entitled to relief. In other words, a reasonable jury drawing all reasonable inferences in favor of Mazur could not find that defendants disciplined or harassed Mazur because of her race or that they retaliated against her for engaging in protected activity. Mazur did not set forth any other cognizable claims for relief. Under those circumstances, judgment will be entered in favor of defendants and against Mazur.

         II. Procedural History

         On June 22, 2017, Mazur initiated this case by filing a complaint under Title VII and § 1981 against defendants. (ECF No. 1.) On August 11, 2017, defendants filed an answer to the complaint. (ECF No. 11.) On January 14, 2018, Mazur filed a first amended complaint setting forth the following claims: (1) race discrimination in violation of Title VII; (2) disparate treatment in violation of Title VII; (3) hostile work environment “based on an ongoing pattern of harassment in retaliation for…Mazur having filed the…EEOC case on race and disparate treatment[;]” (4) retaliation in violation of Title VII; and (5) retaliation in violation of § 1981. (ECF No. 36 ¶ I.)

         On February 12, 2018, defendants filed a partial answer to the first amended complaint (ECF No. 42), a partial motion to dismiss (ECF No. 43), and a brief in support of the motion (ECF No. 44). Defendants sought to dismiss Mazur's claims of retaliation based upon Mazur filing her first charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on July 2, 2016. (ECF Nos. 43, 44.) Defendants did not argue the claims of retaliation based upon Mazur complaining to her superiors about disparate treatment and racial discrimination beginning on June 15, 2016, should be dismissed. (ECF No. 96 at 20.) On February 17, 2018, Mazur filed a response in opposition to the motion to dismiss. (ECF No. 45.) The court granted the partial motion to dismiss with respect to Mazur's claims of retaliation based upon filing her first charge of discrimination with the EEOC, of which defendants received notice on August 10, 2016. (ECF No. 96 at 34.) The court explained that Mazur did not set forth factual allegations sufficient to show plausibly that there was a causal connection between Mazur filing her first charge of discrimination with the EEOC and defendants taking an adverse employment action against her. (Id. at 30-31.)

         On September 12, 2018, Mazur filed a motion for leave to file a second amended complaint. (ECF No. 110.) Mazur in the second amended complaint set forth the same claims stated in the first amended complaint and sought leave to assert the retaliation claim based upon the Notice of Charge of Discrimination dated August 10, 2016, which was addressed to an employee at the DMVA. (Id.) The court denied Mazur's motion for leave to amend because she did not set forth factual allegations sufficient to cure the deficiencies cited by the court in its opinion setting forth the reasons it granted the partial motion to dismiss the retaliation claim based upon the Notice of Charge of Discrimination dated August 10, 2016. (ECF No. 117 at 6.)

         On January 17, 2019, Mazur filed a motion for summary judgment (ECF No. 121), brief in support of the motion (ECF No. 122), and concise statement of material facts (ECF No. 123). On January 18, 2019, defendants filed a motion for summary judgment (ECF No. 126), a brief in support of the motion (ECF No. 127), a concise statement of material facts (ECF No. 128), and an appendix (ECF No. 129). On January 29, 2019, Mazur filed an amended brief in support of the motion for summary judgment. (ECF No. 132.) On February 15, 2019, Mazur filed a response in opposition to defendants' motion for summary judgment (ECF No. 135) and a responsive concise statement of material facts (ECF No. 136). On February 18, 2019, defendants filed their response in opposition to Mazur's motion for summary judgment (ECF No. 137), a responsive concise statement of material facts (ECF No. 138), and an appendix (ECF No. 139). On March 1, 2019, Mazur and defendants each filed a reply brief. (ECF Nos. 140, 141.) On March 14, 2019, the combined concise statements of material facts were filed. (ECF Nos. 142, 143.)

         On August 11, 2019, Mazur filed a motion to compel a name-clearing hearing, which raises issues related to the issues raised in the motions for summary judgment. (ECF No. 159.) On August 21, 2019, defendants filed a response in opposition to the motion. (ECF No. 161.) On August 21, 2019, Mazur filed a reply brief. (ECF No. 162.)

         The motions for summary judgment, having been fully briefed, are now ripe to be decided by the court.

         III. Factual Background

         The factual background is derived from the undisputed evidence of record and notes the disputed facts of record. With respect to the dueling motions, each disputed fact is to be viewed in the light most favorable to the nonmoving party for each motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Because defendants' motion is being granted, all the disputed facts described below are viewed in the light most favorable to Mazur.

         A. Background about the DMVA and the SWVC

         The DMVA is part of the Executive Department of the Commonwealth of Pennsylvania (“Commonwealth”). 71 Pa. Stat. § 61(a); Defendants' Combined Concise Statement of Material Facts (“DCCSMF”) (ECF No. 143) ¶ 1.) The DMVA's central administrative offices are located in Fort Indiantown Gap (“FIG”), which is located in Lebanon County, Pennsylvania. (DCCSMF (ECF No. 143) ¶ 2); (ECF No. 129-2 ¶ 2.) The DMVA operates six veterans' homes throughout the Commonwealth, including the SWVC. (DCCSMF (ECF No. 143) ¶ 6.) The veterans' homes fall under the jurisdiction of the Bureau of Veterans Homes (“BVH”). (Id.) The BVH is headed by a director. (Id.)

         During the relevant time period, Andrew Ruscavage (“Ruscavage”) served as the director of the BVH. (DCCSMF (ECF No. 143) ¶ 6.) Kim Kreiser (“Kreiser”) was a division chief in the DMVA's human resources office at FIG at the times relevant to this litigation. (DCCSMF (ECF No. 143) ¶ 3); (ECF No. 129-2 ¶ 3.) Jennifer McClain-Miller (“McClain-Miller”) was a labor relations analyst in the DMVA's human resources office at FIG at the times relevant to this litigation. (DCCSMF (ECF No. 143) ¶ 4; ECF No. 129-9 at 9.)

         The DMVA has Standards of Conduct and Work Rules. (ECF No. 129-1) “These work rules constitute the general rules applicable to employees of the Department of Military and Veterans Affairs[, ]” and cover topics including “Work Performance[, ]” “Time and Attendance[, ]” “Safety Standards[, ]” “Use of Property[, ]” and “Unauthorized Behavior[.]” (Id. at 2-5.)

         Each veterans' home under the operation of the DMVA is headed by a Commandant, who is assisted by a Deputy Commandant. (DCCSMF (ECF No. 143) ¶ 7.) At the SWVC, during the relevant time period, Rich Adams (“Adams”) served as the Commandant and Barry Lowen (“Lowen”) served as the Deputy Commandant. (Id.) Jamie Cuthbert (“Cuthbert”) was the human resources analyst (“HR analyst”) at SWVC at the times relevant to this litigation. (DCCSMF (ECF No. 143) ¶ 8.)

         The SWVC has an accounting department that is responsible for aspects of the financial operation of the SWVC. At the times relevant to this litigation, Darren Lindsay (“Lindsay”) was the accountant at the SWVC and supervised the accounting department. (ECF No. 129-2 ¶ 9.)

         B. Mazur's Employment with the SWVC

         Mazur, who is white, was employed by the DMVA at the SWVC until she resigned on April 27, 2017. (DCCSMF (ECF No. 143) ¶¶ 10-11.) Mazur had “fair share” status with the American Federation of State, County and Municipal Employees (“AFSCME”). (ECF No. 129-3 at 58.) At the SWVC, Mazur was initially employed as a clerk typist in the human resources office, but after five months was placed as one of two accounting assistants in the accounting department. (ECF No. 129-3 at 24-25; ECF No. 129-8 at 12-13; ECF No. 129-2 ¶ 10.) Mazur worked with Cuthbert in the human resources office. (ECF No. 123-6 ¶ 17.) When Mazur transferred to the accounting department, she was not on “good terms” with Cuthbert. (Id.)

         Mazur was first supervised in the accounting assistant position by Don Shields (“Shields”). (ECF No. 129-3 at 25.) Shields retired and Lindsay became Mazur's supervisor. (Id. at 26-27.) Lindsay is black. (DCCSMF (ECF No. 143) ¶ 15.) Lowen is Lindsay's supervisor. (ECF No. 129-5 at 11.) Lindsay gave Mazur an “outstanding” Employee Performance Review (“EPR”) dated May 18, 2016. (ECF No. 129-4 at 46; ECF No. 123-6 at 34.) Lindsay noted that Mazur “did her job well, ” (ECF No. 129-4 at 60), and considered her dependable, reliable, and honest. (Id.) On a performance evaluation dated May 18, 2016, Mazur was labeled “outstanding.” (ECF No. 129-4 at 46.)

         Warden was the other accounting assistant at the SWVC, and she worked under both Shield's and Lindsay's supervision. (DCCSMF (ECF No. 143) ¶ 17.) Warden self-identified as “White” on a form provided to her by the SWVC. (ECF No. 129-1 at 7, 9; ECF No. 129-8 at 24.) Adams described Warden's race as “biracial.” (ECF No. 129-6 at 41.) Lindsay testified that he was not aware of Warden's “race and color.” (ECF No. 129-4 at 53-54.) Lowen testified that he was not aware of Warden's “race or color.” (ECF No. 129-5 at 62.) Mazur considered Warden black. (DCCSMF (ECF No. 143) 13.) Mazur was treated with disdain because she did not fit in with Lindsay and Warden. (ECF No. 123-6 ¶ 2.) Lindsay and Warden talked about the “hood, ” music, television programs, and other things that Mazur did not understand. (Id.) In 2014, Warden failed to count money in her possession prior to leaving for vacation and turning the funds over to Mazur. (Id. ¶ 3.) Mazur witnessed Warden leaving funds unattended while the bank window of the accounting office was open. (Id. ¶ 4.) Warden did not count the money in the money box on a daily basis. (Id. ¶ 5.) If the money box “came up short, ” she would, therefore, have to “go through two weeks of transactions to try and find the error.” (Id.) Warden took “excessive breaks every day.” (Id. ¶ 16.) Warden was not disciplined for the foregoing conduct. (ECF No. 123-6 ¶ 16.)

         In December 2014, Warden took a week-long vacation. (ECF No. 123-6 ¶ 3.) Prior to leaving for vacation, however, she did not do a “funds turnover count” of the safe and the money box. (Id.) Lindsay had taken seventy-two dollars from the money box and Warden did not know or report it to Lindsay. (Id.) On May 13, 2016, Warden told Lindsay that the money box was short by ninety dollars. (ECF No. 123-6 ¶ 10.) In April 2016, Mazur complained to Lindsay about Warden's performance in the accounting office. (ECF No. 129-3 at 38; ECF No. 129-1 at 35.) Mazur specifically complained that Warden “continually” took breaks while the bank window of the accounting office was open. (ECF No. 123-6 ¶ 5.) Mazur was required to work the bank window while Mazur was on a break. (Id.) Lindsay addressed the complaints with Warden and told Warden that Mazur complained about her. (ECF No. 129-3 at 38.) Warden confronted Mazur and told Mazur that she “stabb[ed]…her in the back.” (ECF No. 129-3 at 37.)

         In April 2016, Mazur sent an email to Cuthbert to complain about an interaction she had with Warden. (ECF No. 129-3 at 39.) Mazur explained the incident as follows:

Where Sharon was working the window and I had to go to the bathroom and they were cleaning the main bathroom. And Sharon saw me heading towards the bathroom, where you enter a code to get into. And she leaves the Accounting Office…. She's the only one in there with the window open, and chases me down the hall and bangs on the door and tells me to get out of there, I'm not allowed to use that bathroom. It was basically an incident that was inappropriate.

(ECF No. 129-3 at 39.) According to Mazur, Warden “harassed” other white people about the use of the private bathroom. (ECF No. 129-3 at 40.) Warden, however, “didn't get any punishment” for those incidents. (Id. at 42.) She was told to “knock it off.” (Id.) Lindsay was aware that animosity existed between Mazur and Warden. (ECF No. 129-1 at 35.)

         On May 13, 2016, Warden reported to Lindsay that ninety dollars was missing from the accounting office. (ECF No. 123-6 ¶ 6.) Lindsay provided ninety dollars of his own money to resolve the discrepancy. (Id.) He said he would get reimbursed once the discrepancy was found. (Id.) Warden was not disciplined for the ninety-dollars discrepancy. (Id. ¶ 16.)

         In June 2016, Lindsay became aware that Warden received a haircut “on company time.” (ECF No. 129-4 at 57.) Lindsay did not discipline Warden for that conduct. (Id.) Lindsay talked to Warden about not taking smoke breaks while the window of the accounting office was open. (ECF No. 129-4 at 59.)

         On or about June 6, 2016, Warden transferred to the human resources office at the SWVC, and she was replaced in the accounting assistant position by Lisa Havrilla (“Havrilla”). (ECF No. 129-3 at 27-28; ECF No. 129-2 ¶¶ 13-14.)

         C. Mazur's Replenishment Run on May 16, 2016

         As employees of the accounting department, Mazur, Warden, and Lindsay would go to the bank to perform a “replenishment run[.]”[1] (ECF No. 123-6 ¶ 11; ECF No. 129-1 at 29, 32; ECF No. 123-6 at 47.) A replenishment run occurs when an employee of the accounting department takes a check from the SWVC written to the employee to the bank to be cashed and delivers the money to the SWVC to replenish the cash on hand in the accounting department. (ECF No. 123-6 at 47; ECF No. 143 ¶ 21.) On May 16, 2016, Mazur went to the bank for several transactions, including cashing a check for $4, 784.00 to replenish a petty cash fund used by residents. (ECF No. 143 ¶ 21.) Warden gave Mazur a check for $4, 784.00 written to Mazur to be cashed at the bank. (ECF No. 123-1 at 60.) Mazur drove her own vehicle to the bank because a car from the SWVC was not available. (ECF No. 129-1 at 11, 32.) The bank teller counted the money in descending order, i.e., larger bills first followed by lower bills and coins. (ECF No. 129-1 at 32.) As the teller placed the money on the counter, Mazur put the money into the deposit bag, which was a “shopping bag[.]” (ECF No. 129-1 at 32; ECF No. 123-6 at 39, ¶7.) Mazur “went off…[the teller's] sheet[, ]” (ECF No. 129-1 at 17), i.e., she “counted the money with the teller off of her sheet[, ]” (ECF No. 123-2 at 21). Mazur watched the teller count the money and placed the money in the deposit bag “after it matched…[the teller's] sheet.” (Id.)[2] Mazur picked up the deposit bag and her purse and walked toward the door of the bank. (ECF No. 129-1 at 32.) She continued to talk to the bank teller until she walked out the door. (Id.) Mazur walked directly to her car, placed her purse and the deposit bag on the passenger seat, and drove to the SWVC. (ECF No. 129-1 at 32.)

         Upon Mazur's arrival at the SWVC in her vehicle, she grabbed her purse and the deposit bag, walked into the SWVC, went to the accounting office, and placed the deposit bag on Warden's chair. (ECF No. 129-1 at 11, 33.) Money had been left unattended in the accounting office in the past, i.e., “[i]n the drawer of file cabinet, on the chair, or under the desk.” (ECF No. 129-1 at 61.) The accounting office did not have a specific place to put the deposit bag after a replenishment run. (Id.) No one was in the accounting office when Mazur returned from the bank to the SWVC. (ECF No. 143 ¶ 22.) Mazur returned to her desk. (ECF No. 129-1 at 1, 17, 33.) Mazur could see Warden's chair from her chair because Warden's chair was “pulled away from her desk.” (ECF No. 129-1 at 11, 18.) The accounting office was locked and is locked at all times.[3] (Id.)

         Approximately five minutes later, (ECF No. 129-1 at 33), Warden returned to her desk, picked up the deposit bag, opened the deposit bag, removed all the money from the deposit bag, and started to count the money at a filing cabinet in the accounting office. (ECF No. 129-1 at 17, 29, 33.) Warden began counting the money out of Mazur's sight. (ECF No. 129-2 at 71.) Approximately one to seven minutes later, (ECF No. 122-1 at 59 (“about a minute later”)) (ECF No. 129-2 at 49 (five to seven minutes)); (ECF No. 129-2 at 71 (three to five minutes)), Warden requested Mazur's assistance in verifying the amount of money retrieved from the deposit bag. (ECF No. 129-1 at 29.) According to Warden, Mazur and she “follow the same procedure” and always counted the money together, i.e., “[t]he person that went to the bank comes back and counts it with someone else.” (ECF No. 129-1 at 61.) According to Mazur, she did not count any money obtained from a bank run unless Warden requested her help. (ECF No. 123-6 at 39 ¶ 8.) Warden would “usually” ask for help counting the money “when it was a busy day or it was getting close to the end of the work day.” (Id. ¶ 11.) If Lindsay performed the replenishment run, he would place the deposit bag on top of the file cabinet for Warden to count when she returned to the office. (Id.)

         Warden handed Mazur one pack of money at a time. (ECF No. 123-6 at 40 ¶8.) Each pack was bound by a band that listed the amount of money that was supposed to be contained in the pack. (Id.) Mazur verified that the amount of money contained in each pack matched the amount of money listed on the band by running the money contained in each pack through a money counter. (ECF No. 123-6 ¶ 8.) Warden reassembled each pack of money. (ECF No. 123-1 at 60.) Once all the money had been run through the money counter, Warden “added it up mentally” and stated the count was off by $500.00. (Id.; ECF No. 123-1 at 60.) Warden considered this her “first count” of the money. (Id.) According to Mazur, however, neither Warden nor she recounted the money to verify that it was $500.00 short. (ECF No. 123-6 ¶ 8.)

         Warden called the bank to ask if the bank teller's drawer was $500.00 over. (ECF No. 129-1 at 17.) Warden “counted the money mentally while physically looking at the denominations and adding it in…[her] head.” (ECF No. 123-1 at 60.) She considered this her “second count” of the money. (Id.) Warden instructed Mazur to go and search her vehicle for the missing $500.00. (ECF No. 129.1 at 17.) Mazur admitted that she left Warden alone with the money. (ECF No. 129-2 at 71.) Mazur saw Lindsay in the parking lot and told him about the missing $500.00. (ECF No. 129-1 at 17; ECF No. 129-1 at 26.) Mazur asked Lindsay to search her vehicle; he refused. (ECF No. 123-6 at 40.) Warden went outside to smoke a cigarette and spoke to Lindsay about the missing $500.00. (ECF No. 129-1 at 17; ECF No. 129-1 at 26.) The money was left unattended in the accounting office when Warden went outside to smoke a cigarette. (ECF No. 129-4 at 50.)

         Mazur and Lindsay returned to the accounting office. (ECF No. 129-1 at 26.) According to Lindsay, they “looked over the money” and verified that it was $500.00 short. (Id.) When Mazur, Warden, and Lindsay returned to the accounting office they discussed the missing $500.00 and its whereabouts. (ECF No. 129-1 at 26, 29, 33.) Specifically, Lindsay and Warden questioned Mazur about her actions going to the bank, while at the bank, and traveling back to the SWVC from the bank. (ECF No. 129-1 at 26, 33.) Lindsay asked Mazur if she verified the money before leaving the bank. (ECF No. 123-1 at 62.) According to Lindsay and Warden, Mazur responded “no” because she did not have an itemized list. (Id.; ECF No. 129-1 at 26, 29.)

         Mazur prior to making a replenishment run “usually” received an itemized list of the quantity of denominations she was going to receive from the bank. (ECF No. 129-1 at 32.) On May 16, 2016, however, Warden did not provide Mazur an itemized list prior to her going to the bank. (ECF No. 129-1 at 26, 29-30, 32.) Warden explained that she did not send an itemized list with Mazur because the bank teller was “substituting the denominations according to what was in her drawer.” (Id.)

         Lindsay, Warden, and Mazur concluded that the missing money was one pack of twenty-dollar bills totaling $500.00. (ECF No. 129-1 at 26.) According to the witness statements provided by Lindsay and Warden, on May 16, 2016, Mazur told them that she received four stacks of twenty-dollar bills each totaling $500.00 from the bank teller. (ECF No. 129-1 at 26, 30.) The bank teller returned Warden's call and informed her that her supervisor and she counted her drawer and the drawer balanced. (ECF No. 123-1 at 61.) At some point Lindsay also called the bank, spoke with the bank manager, Dusty Klavon (“Klavon”), and was informed that the bank teller's drawer balanced. (ECF No. 129-1 at 26.)

         Prior to leaving for the day, Warden asked Lindsay to look in her purse. (ECF No. 129-1 at 30.) Warden opened her bag to show Lindsay there was nothing in it. (ECF No. 129-1 at 61.) Lindsay did not search Mazur's car or purse because he was “uncertain of the legal ramifications of…searching…[Mazur's] car” and purse. (ECF No. 129-4 at 51.)

         At some time that day, Mazur asked Lindsay to obtain the bank teller sheet from May 16, 2016, which Mazur used to count the money she received for the replenishment. (ECF on. 123-6 at 40 ¶ 10.) Lindsay obtained the bank teller sheet and confirmed that the amount on the teller sheet added up to the amount of the check used for the replenishment. (Id.)

         According to Mazur, if anyone other than Lindsay or Warden entered the office and tried to take the deposit bag after she placed it on Warden's chair, she would have notified security, which was located outside the accounting office. (ECF No. 123-6 ¶ 26.)

         D. Events following Mazur's Replenishment Run on May 16, 2016

         1. May 17, 2016

          On May 17, 2016, Mazur arrived at work at approximately 7:45 a.m. and “found money laying on the file cabinet unattended.” (ECF No. 129-2 at 71.) Mazur notified Lindsay about the unattended money, but “he took no action.” (Id.) Mazur began to search the accounting office for the missing $500.00. (ECF No. 129-1 at 33.)

         According to the witness statements by Lindsay and Warden, Mazur told Lindsay and Warden that she remembered receiving five stacks of twenty-dollar bills each totaling $500.00 because she remembered “going over” the bank teller's itemized list. (ECF No. 129-1 at 27, 67, 33.) According to Lindsay, Mazur told him that Warden sent her to do the replenishment run and upon Mazur's return from the bank Warden counted the money by herself. (ECF No. 129-1 at 27.) Mazur told Lindsay that she wanted the SWVC to perform an investigation into the missing $500.00. (ECF No. 129-1 at 33, 35.)

         Lindsay told Lowen about the missing $500.00 and Lindsay went to the bank. (ECF No. 129-1 at 27.) While at the bank, Lindsay asked Klavon to do a formal investigation at the bank about the missing $500.00. (Id.) Klavon reviewed paperwork with Lindsay to show Lindsay that the bank teller's drawer balanced. (Id.) After Lindsay returned from the bank to the accounting office, he met with Warden and Mazur and implemented deposit and cash replenishment procedures to take immediate effect.[4] (ECF No. 120-1 at 27; ECF No. 123-3 at 2.)

         2. May 18, 2016

         On May 18, 2016, Lindsay-after discussing the matter with Lowen-contacted the City of Pittsburgh Police Department. (ECF No. 129-4 at 32, 53.) Lowen told Gerard Hrapla, the SWVC fire and safety specialist, to contact the police about the missing $500.00. (ECF No. 129-5 at 83.) Nicole Kolestar (“Kolestar”), an officer with the City of Pittsburgh Bureau of Police, responded to the call from Lindsay and completed an investigative report dated May 18, 2016. (ECF No. 62 at 1.) Lindsay was listed as the “reporting person” on the investigative report. (Id.) Mazur was listed as “suspect #1[;] Warden, who was identified as “black[, ]” was listed as “suspect #2[.]” (Id.)

         The narrative of the report provides that Kolestar spoke with Lindsay, who informed her that after Mazur went to the bank, she “handed the money which was in a bag to….Warden[, who] counted the money and found that one stack of twenty dollar bills was missing and brought it to Lindsays [sic] attention.” (Id. at 2.) Lindsay contacted the police “in case the bank called telling him the right amount of money was given to Mazur[, ] which would mean one of his two assistants may have taken the money.” (Id.) Lindsay did not want Mazur or Warden to know he contacted the police. (Id.)

         3. May 19, 2016

         On May 19, 2016, Lindsay, Warden, and Mazur provided witness statements. (ECF No. 129-1 at 26-27, 29-30, 32-33.) In Mazur's witness statement, she explained, among other things, that she “felt whatever happened [to the money], happened at the bank.” (ECF No. 122-1 at 59.) She wrote: “I certainly didn't think that Sharon took the money so that leaves the bank.” (Id.)

         4. May 23, 2016

         On May 23, 2016, Thomas Nee (“Nee”), a detective for the City of Pittsburgh Bureau of Police, wrote a supplemental report, in which he noted that he attempted to contact a manager of the bank, but the assistant manager and manager were unavailable. (ECF No. 62 at 3.)

         5. May 24, 2016

         On May 24, 2016, Nee wrote a second supplemental report. (ECF No. 62 at 4.) Nee spoke with Klavon who informed him that the bank teller's drawer balanced. (Id. at 5.) Klavon also told Nee:

[T]he surveillance video was reviewed and it's not in a good position, but you can see the note which lists the denominations being handed to Mazur and money. The denominations of twenties is [sic] 5 packs of $500.00 (25-twenties) and because of Mazur having the note she would have known there was 5 packs of twenties…[A]ll the monies given to Mazur were placed in a duffel bag.

(Id.)

         On May 24, 2016, Mazur's emails at the SWVC were deleted. (ECF No 129-2 at 72.) She was required to notify her supervisor and the information technology department to have her emails restored. (Id.)

         6. May 25, 2016

         On May 25, 2016, Mazur's emails were restored “but were jumbled and out of order.” (ECF No. 129-2 at 72.)

         On May 25, 2019, Lindsay provided a second witness statement to the SWVC. (ECF No. 129-1 at 35.) In the second witness statement, Lindsay stated that Mazur told Lindsay that she believed Warden stole the $500.00 “to make…[Mazur] look bad.” (Id.) Mazur was “adamant that the investigation…[be] continued.” (Id.) Mazur also reported to Lindsay that Warden was “making a lot of mistakes in accounting.” (Id.) Lindsay, however, pointed out in his second witness statement that on May 25, 2016, Mazur gave a resident twenty-dollars more than he had in his account. (Id.)

         E. The Investigation by the SWVC and the DMVA

         Cuthbert, as the HR analyst, usually conducts investigations of employee misconduct at the SWVC. (ECF No. 129-8 at 57.) Cuthbert, however, was not responsible for disciplining employees. (ECF No. 129-8 at 107.) McClain-Miller explained the HR analyst's role in conducting an investigation of employee misconduct as follows:

[T]he HR analyst is helping sort of corral those documents together because it's her responsibility to relay them to the labor relations office.
She isn't necessarily the person conducting the investigation. It could be the supervisor who is conducting the investigation. She's just been guiding them through, here are the documents that we need, here are things that we'd be looking for. Maybe we need a drawing of a location, maybe we need photographs. Maybe we need copies of nursing regulations that are applicable. It just depends on the case at hand.
She helps corral that all to us and then she transfers it to a PDF documentation. And at the time what they did was they would drop it to a shared drive where we would access that documentation and review it, discuss it and make a discipline decision.
The analyst typically crafts that discipline letter. Hence, why I [w]as confused by the ones you saw because that was not my letter. So they craft a discipline letter. Convey that back to the analyst. The analyst finishes up any formatting and gets it signed by the appropriate personnel and then the discipline is delivered.

(ECF No. 129-109 at 73-74.) McClain-Miller testified that the person receiving the file about the alleged employee misconduct would want to know the applicable rules that were violated. (ECF No. 129-10 at 80.) He or she would have the legal department involved if there was possible criminal conduct and the need to involve the police. (Id. at 80.)

         If a labor relations analyst for the DMVA has questions about the adjudication of a case, he or she will contact the SWVC's HR analyst or the supervisor for assistance. (ECF No. 129-10 at 82.) Neither the HR analyst nor the supervisor is required to submit a proposal about the level of discipline he or she feels is appropriate for the case. (Id. at 82.) For less serious forms of discipline, e.g., oral or written reprimands, a labor relations analyst from the DMVA together with the HR analyst at the SWVC may decide the appropriate level of discipline. (Id. at 83.) For more serious forms of discipline, e.g., five-day suspensions or terminations, people “up the chain of command[, ]” e.g., the DMVA's legal department, review the case and determine the appropriate level of discipline. (Id. at 83.)

         Because Cuthbert was not present on May 16, 2016, when the money went missing, the investigation was referred to the labor relations department located in the offices in FIG. (Id.) Someone in the labor relations department instructed Cuthbert to conduct an investigation, i.e., obtain witness statements from Mazur, Lindsay, and Warden and conduct a pre-disciplinary conference (“PDC”), upon her return to work. (Id. at 57, 60.) At some point, McClain-Miller or Kreiser told Cuthbert “to refer everything [with respect to Mazur and the missing $500.00] up to labor relations.” (ECF No. 129-8 at 16.) A labor relation analyst from the FIG determines if the documents provided by Cuthbert support issuing discipline. (ECF o. 129-8 at 107.)

         Defendants responded to an interrogatory that the PDC on May 26, 2016, was the only investigation with respect to Mazur. (ECF No. 123-3 at 6.) According to Lindsay, however, the investigation by the SWVC with respect to the missing $500.00 included more than conducting Mazur's PDC. (ECF No. 129-4 at 36.) Lindsay described his role in the ongoing investigation as follows:

[W]e tried to retrace the steps, and I had to explain ---- give witness statements as to what happened and what I knew about it. So I called in an officer to come in and investigate. We went to the bank to review videotapes to see the transaction that took place.

(ECF No. 129-4 at 36.)

         Lowen and Lindsay went to the bank to obtain to ask for the video footage of Mazur in the bank on May 16, 2016. (ECF No. 129-5 at 31.) Lowen recalled that there was “some issue” with the bank's system and its ability to provide to Lowen video footage of Mazur in the bank on May 16, 2016. (ECF No. 129-5 at 30.) The bank gave Lowen “pictures” or “some kind of evidence of it and that was able to be seen.” (Id.)

         Prior to Mazur's PDC on May 26, 2016, a conference in Lowen's office occurred among Nee, Adams, Lowen, and Lindsay. (ECF No. 129-5 at 46-47; 129-6 at 31-32.) A representative from the legal department of the DMVA was also in attendance. (Id.) Nee appeared at the conference via telephone. (Id.) Nee said he had enough evidence “to prosecute…or arrest” Mazur. (ECF No. 129-4 at 33.) Nee explained that it was up to the SWVC and the DMVA about how they wanted to proceed. (ECF No. 129-6 at 32.) Lindsay did not see or ask Nee about any of Nee's evidence. (ECF No. 129-4 at 33.) “Detective Nee just basically went over what he discovered or what he thought about the situation, and he said that he had enough evidence to…prosecute or arrest.” (ECF No. 129-4 at 63.) Lindsay spoke with Nee on the phone two or three times. (ECF No. 129-4 at 64.)

         F. Mazur's PDC

         1. Notice of the PDC

         On May 26, 2016, at approximately 8:15 a.m., Mazur received a “Written Notice of Pre-disciplinary Conference[, ]” which provided that her PDC[5] was scheduled for the same day, i.e., May 26, 2016, at 8:30 a.m. (ECF No. 129-1 at 14; ECF No. 129-2 at 72.) The notice was from Lowen and advised Mazur that the SWVC was “conducting an investigation into allegations concerning…[Mazur's] conduct as an employee….” (ECF No. 129-1 at 14.) The notice listed the following work rules for which Mazur was being investigated:

Work Performance
1. Neglect of duty or responsibility, including, but not limited to:
a. Failure to perform assigned tasks or a legitimate work assignment.
Use of Property
2. Loss of or damage to Commonwealth property through carelessness, neglect or indifferences.
3. Stealing/Theft[.]
Unauthorized Behavior
4. Any action which would reflect unfavorably on or discredit the Commonwealth or Department of Military and Veterans Affairs.

(ECF No. 129-1 at 14.) The notice also provided:

The purpose of the conference is to present you with the opportunity to discuss the allegations and to respond in detail to the charges listed above. At the conference, you will be requested to provide your account of the incident being investigated.
Corrective action may or may not be imposed depending on the facts gathered during the investigation.

(Id.)

         Mazur contacted Sue Kubla (“Kubla”), who was her union representative, and informed Kubla that she was being “PDC'd.” (ECF No. 129-2 at 72.) Mazur, however, did not have an opportunity to speak with Kubla privately prior to the PDC. (Id.) According to McClain-Miller, there is no rule about how much “notice” or time an employee is to receive prior to a PDC. (ECF No. 129-10 at 54.) If an employee requires more time to prepare for a PDC, the union steward may communicate the need to the DMVA. (ECF No. 129-10 at 58.) McClain-Miller would have accommodated a request for additional time to prepare for the PDC from Kubla. (ECF No. 129-10 at 58.) On July 1, 2016, Mazur emailed Richard Caponi (“Caponi”) and asked him “how much notice an employer is to give an employee for a PDC[.]” (ECF No. 123-2 at 14.) On July 5, 2016, Caponi responded: “usually 24 hours or more.” (Id.; ECF No. 123-2 at 15.)

         McClain-Miller explained her understanding of why Mazur was charged at her PDC with neglect of duty:

Because it was alleged that you were expected to take a check to the bank to retrieve money for the Veterans. Return it to the workplace. Count that cash and then I think it goes into a vault to be secured and that work assignment was not performed optimally as $500 went missing.

(ECF No. 129-9 at 20.)

         2. The PDC

         On May 26, 2016, at 8:40 a.m., a PDC was held with respect to Mazur's role in the missing $500.00. (ECF No. 129-8 at 45; ECF No. 129-1 at 16.) Mazur, Kubla, Cuthbert, Lowen, Kreiser, and McClain-Miller were present at Mazur's PDC. (ECF No. 129-8 at 46, 66; ECF No. 129-1 at 16.) Kreiser conducted most of the PDC. (ECF No. 129-8 at 46-47.)

         According to Mazur, she stated the following during her PDC:

I counted the replenishment money with the bank teller and verified the amount received was correct by looking at the bank teller sheet (which added up to the amount of the replenishment check), I didn't stop anywhere between the bank and SWVC, I brought the whole amount of replenishment money back from the bank to the Accounting office, and I kept the replenishment money in a locked office where it was in my sight and control at all times until Sharon Warden took possession of the replenishment money. Had anyone other than Sharon Warden or Darren Lindsay entered the Accounting office and took or tried to take the money; [sic] I would have notified security which was just outside the Accounting Office.

(ECF No. 123-6 at 44 ¶ 26.) According to Mazur, the PDC was “a hostile attack with false unproven statements made against…[her].” (Id.) She explains that she was told: “You left money out of sight and unattended, You had a custom of counting money together, You said you always count the money together, The police have enough to charge you” (Id.)

         Cuthbert and Lowen took notes during the PDC. (ECF No. 129-1 at 16.) Following the PDC, Cuthbert typed notes from the PDC based upon the notes taken by Cuthbert and Lowen during the PDC. (ECF No. 129-8 at 46.) The PDC notes compiled by Cuthbert were “not meant to be a true transcription” of what occurred during the PDC. (ECF No.129-9 at 61.) Following the PDC, Cuthbert sent to “labor relations” pictures of the accounting office taken by Lowen, notes from the PDC, and witness statements from Mazur, Warden, and Lindsay. (ECF No. 129-8 at 51; ECF No. 129-1 at 26-27, 29-30; 32-33; 35.)

         The PDC typed notes reflected that Mazur explained, among other things, that:

[The bank teller]…had a sheet with denominations because there were substitutions. So I went off of her sheet. She started with 20's. [sic] After she counted each denomination, I put it in the bag that Sharon gave me. After she was done I put money in the bag and headed to the door. I went straight to my car.

(ECF No. 129-1 at 17.) According to Cuthbert's typed PDC notes, when Cuthbert asked Mazur when she placed the money into the bag, Mazur responded:

After each counting of denomination. When…[the bank teller] was counting the stacks I was watching her count and then put it into the bag after it matched her sheet.

(Id.) The PDC typed notes reflect that Mazur gave the following account of what happened when she returned to the SWVC:

I put the bag in [sic] Sharon's chair because she was not in the office. I went to my desk to work. When Sharon came into the office she took the bag and started taking money out of it. In about a minute she called me over to count the money with her. I initialed the packs as they were counted. As Sharon was counting, she was adding on her calculator. She realized it was $500 short. Sharon called the bank right away and told someone Becky's drawer should be $500 over and please call back. At some point someone called back and said Becky's drawer balanced. In the meantime, Sharon told me to go check my car to see if it was in there. I did and it wasn't'. [sic] I saw Darren in the parking lot. He had newspapers for me. I told Darren of [sic] the problem. Sharon came out with Julia to smoke and said to Darren we have a problem. Darren and I came back in to [sic] office. When Sharon came back, the 3 of us started brainstorming what could happen with $500. The last I remember is $303 in the stack of ones. Every day we go over what could have happened and I keep checking my car because I want this over.

(ECF No. 129-1 at 17-18.) The notes also reflect that:

- Mazur “normally” would not place the money on Warden's chair, but Warden was not there and she felt “comfortable” placing it on the chair because she could hear who came in and out of the office (id. at 18);
- Mazur said she believed there were four suspects: “The teller, the manager at the bank who went to the teller, …[Mazur], and Sharon” (id. 19);
- Mazur wished that she got up and counted the money with Warden when Warden returned to her office (id. at 19-20);
- Mazur did not get up and count the money with Warden when Warden returned to the office because Mazur was “busy” and “a little lax” (id. at 20); - Mazur offered to take a lie detector test and explained that she did not take the $500.00 (ECF No. 129-1 at 20);
- Mazur blamed Warden and the manager at the bank for taking the money (id. at 20-21); and
- Mazur wished there was a “lockdown immediately in this situation” (id. at 21).

         McClain-Miller's recollection from the PDC was that Mazur was asked about whether she recounted the stacks of money at the bank and Mazur responded that she did not. (ECF No. 129-9 at 49.) McClain-Miller testified that Mazur at the PDC explained that she watched the bank teller “marking…[the stacks] and throwing…[them] in the bag, but…[Mazur] didn't take them and recount them…[herself].” (Id.) In other words, McClain-Miller's understanding was that Mazur at the bank counted the packs of twenty-dollar bills as they went into her bag but did not count the bills in the packs. (ECF No. 129-9 at 55.) McClain-Miller gave a witness statement dated November 3, 2016, which included, among other things:

During her Pre-disciplinary Conference (PDC), Ms. Mazur admitted that she did not check the money at the bank with the teller to ensure she had the correct amount. Ms. Mazur also admitted that she had left the money on Ms. Warden's desk chair. This meant the money was out of Ms. Mazur's custody and pictures of the office floor plan showed that the money was completely out of Ms. Mazur's line of sight. Ms. Mazur further admitted that when she heard Ms. Warden return to the office, Ms. Mazur did not immediately get up and go help Ms. Warden count the money, as is their custom. These factors demonstrated Ms. Mazur's culpability in the missing $500.
Unfortunately, Ms. Warden did have possession of the cash for a brief moment while out of sight from Ms. Mazur. During Ms. Warden's PDC, she admitted this was the case and explained that she had to call Ms. Mazur to get her to come help count the money. Ms. Warden began counting the money before Ms. Mazur joined her. While this time is very brief and by both employees' accounts was only a matter of a minute or two, Ms. Warden did have custody of the cash unobserved. Therefore, I found Ms. Warden had some culpability [and] sustained the allegation that $500 of the petty cash replenishment was lost because Ms. Warden also failed to maintain proper custody and control of the money.

(ECF No. 129-2 at 32.)

         McClain-Miller at the time of Mazur's PDC did not know that on May 16, 2016, there were no “prescribed standard[s]” about the replenishment procedures. (ECF No. 129-9 at 29.) McClain-Miller explained, however, that “there are contractual languages for persons who are responsible for cash” and “there are contractual rules about cash handling and the responsibility.” (ECF No. 129-9 at 30.) McClain-Miller believed that under those circumstances the “impetus” was on Mazur to secure the money. (Id. at 30-31.) She explained:

In this case, keeping the money secure, bringing it back, not losing it, I think that doesn't need to be conveyed additionally in writing beyond where it already is.

(ECF No. 129-9 at 32.) According to McClain-Miller, Mazur did not fulfill her duty to secure the money because, as Mazur explained in her PDC, she left it in Warden's office, walked away from the money, and returned to her office. (ECF No. 129-9 at 32.) McClain-Miller believed that Mazur lost the $500.00. (ECF No. 129-9 at 82.) She explained:

I know it's lost. I know it was in your care. So yes, because you told me it was in your care and because the money was missing, I know that you lost it.

(ECF No. 129-9 at 82.)

         McClain-Miller had never been inside the accounting office. (ECF No. 129-9 at 37.) She agreed with Mazur, however, that it is possible to see a portion of Warden's office chair from Mazur's office. (ECF No. 129-9 at 36.)

         The notes from the PDC do not reflect that Mazur during the PDC affirmatively stated that she left the money unattended in Warden's office. (ECF No. 129-9 at 40.) McClain-Miller's understanding of what Mazur said, however, was that Mazur admitted to leaving the money unattended in Warden's office. (Id.) McClain-Miller explained:

We feel that you left the money sitting there unattended. You left it vulnerable. You should have kept it with you and you didn't. It's missing. It's gone. That part is fact. $500 went missing, and it was a resident's money.

(ECF No. 129-9 at 42.) According to McClain-Miller, if Warden stole the $500.00, Mazur “let that happen” by leaving the money unattended. (ECF No. 129-9 at 44.)

         In a declaration provided by Mazur, she wrote:

During the PDC I was verbally attacked and accused of theft and accused of not counting the money at the bank and leaving the money unattended. I denied all charges and repeatedly stated that I did not steal or lose the money and that I brought the entire amount to the accounting office from the bank. I told the PDC attackers that I had the money in my possession and sight at all times until Sharon Warden took possession. I was accused of leaving the money unattended and I never did.

(ECF No. 129-2 at 72.)

         McClain-Miller believed Mazur was more culpable than Warden for the missing $500.00: “I'll continue to believe that you should have kept the money with you and you should have kept it secure and it's lost when it was in your care.” (ECF No. 129-10 at 33.) McClain-Miller, however, believed that Warden should be disciplined because she had “some culpability” for the missing $500.00. (Id.) Mike Barrett (“Barrett”), the DMVA's chief legal counsel, agreed with McClain-Miller. (Id. at 33-34.) McClain-Miller explained:

[I]t was your responsibility to get the money. You were assigned to go to the bank. To retrieve the money. To count the money. To bring it back, to keep it secured. To count it with Sharon and then, I guess, secure it in the vault where the petty cash goes.
You left it on the chair, you walked away from it. You were distracted. You let her pick it up without being with her. That's your culpability. The money is missing. You thought maybe the bank took it. You thought maybe the manager did it.
That tells me you knew the money wasn't secure even at the bank because you thought maybe the bank took it. That was your responsibility to secure that money.

(ECF No. 129-10 at 37.) McClain-Miller testified that Mazur “changed…[her] story multiple times.” (ECF No. 129-10 at 47.)

Lowen considered the following evidence that Mazur stole or lost the $500.00:
That you, on that day, were tasked to go to the bank for replenishment and you did so. And when you came back, $500 was short from the amount that you were supposed to have control of.

(ECF No. 129-5 at 31.)

         At the conclusion of the PDC, Cuthbert presented Mazur a letter of suspension without pay[6] dated May 26, 2016. (ECF No. 129-8 at 62; ECF No. 129-1 at 37-38.) A suspension without pay “means that they're investigating the case and the person that was suspended is not working or getting paid for the days that they're not working.” (ECF No. 129-4 at 35.) The letter of ...


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