Kosek v. Luzerne County et al
Filing
33
MEMORANDUM For the reasons discussed above, Defendants Motion for Summary Judgment (Doc. 25) is denied. An appropriate Order follows.Signed by Honorable Richard P. Conaboy on 11/30/12. (cc)
<![CDATA[
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SARAH KOSEK,
:
:CIVIL ACTION NO. 3:11-CV-1558
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
LUZERNE COUNTY and
:
JOSEPH PIAZZA,
:
:
Defendants.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Defendants’ Motion for Summary Judgment (Doc.
25) filed on October 1, 2012.
Defendants filed Defendants’ Brief
in Support of Their Motion for Summary Judgment (Doc. 26) and
Defendants’ Statement of Undisputed Material Facts as to Which No
Genuine Issue Remains to Be Tried (Doc. 27) on October 11, 2012.
With the motion, Defendants seek summary judgment in their favor on
all claims contained in Plaintiff’s Amended Complaint (Doc. 4).
Plaintiff filed Plaintiff’s Brief in Opposition to Defendants’
Brief in Support of Their Motion for Summary Judgment (Doc. 29) and
Plaintiff’s Response to Statement of Facts and Counterstatement
(Doc. 30) on November 5, 2012.
On November 21, 2012, Defendants
filed Defendants’ Reply Brief in Support of Their Motion for
Summary Judgment (Doc. 31) and Defendants’ Response to Plaintiff’s
Counterstatement of Material Facts (Doc. 32).
With these filings,
this motion is now fully briefed and ripe for disposition.
reasons discussed below, Defendants’ motion is denied.
For the
I. Background
Plaintiff Sarah Kosek (“Plaintiff”) became employed at the
Luzerne County Correctional Facility (“LCCF”) as a correctional
officer on March 21, 2005.
(Doc. 27 ¶ 1; Doc. 30 ¶ 1.)
A vacant
correctional counselor position was posted at the LCCF on July 20,
2009.
(Doc. 27 ¶ 2; Doc. 30 ¶ 2.)
position on July 22, 2009.
Plaintiff applied for the
(Doc. 27 ¶ 3; Doc. 30 ¶ 3.)
Approximately six (6) people applied for the position and were
interviewed.
(Doc. 27 ¶ 4; Doc. 30 ¶ 4.)
The interviewees
included Robert Hetro (“Mr. Hetro”) who was first employed at the
LCCF in February of 2008 as a corrections officer II.
(Doc. 27 ¶¶
16, 17; Doc. 30 ¶¶ 16, 17.)
The LCCF Warden Joseph Piazza (“Defendant Piazza”) asked
Jennifer Lombardo (“Ms. Lombardo”), the Director of the LCCF’s Day
Reporting Center whose duties included supervision of the
correctional counselors, to assist him with the interviews for the
correctional counselor position.
(Doc. 27 ¶¶ 5-6; Doc. 30 ¶¶ 5-6.)
During the interview, Defendant Piazza had the applicants’
personnel files and transcripts for review.
¶ 8.)
(Doc. 27 ¶ 8; Doc. 30
At the completion of the interview process, Ms. Lombardo and
Defendant Piazza narrowed the field of applicants to Plaintiff and
Mr. Hetro.
(Doc. 27 ¶ 22; Doc. 30 ¶ 22.)
Defendant Piazza made
the ultimate decision as to who would be promoted to the counselor
position.
(Doc. 27 ¶ 25; Doc. 30 ¶ 25.)
2
Mr. Hetro was hired for the correctional counselor position
effective August 28, 2009.
(Doc. 27 ¶ 27; Doc. 30 ¶ 27.)
Plaintiff filed a union grievance against the County based on her
overall seniority.
(Doc. 27 ¶ 28; Doc. 30 ¶ 28.)
Article VIII,
Section 5 of the applicable collective bargaining agreement
provides that in the selection process for a vacancy, seniority
should prevail where “qualification, experience, physical fitness,
ability, and efficiency of the Employee to perform the job are
relatively equal.”
(Doc. 30 ¶ 36; Doc. 32 ¶ 36.)
Eventually the matter was settled and Plaintiff was put into
the correctional counselor position.
The parties dispute the date
of the settlement and the cause of the resolution of the grievance
and award of the position.
on May 25, 2011.
Defendants aver the grievance settled
(Doc. 27 ¶ 28.)
In support of this assertion,
Defendants’ citations include a letter from Defendant Piazza to
union representative Anthony Seiwell dated May 25, 2011, informing
him the grievance was settled by mutual agreement “between the
parties, union and management.”
(Doc. 28-13 at 2.)
Plaintiff
disputes this settlement date, asserting the Luzerne County Prison
Board tabled consideration of settlement of Plaintiff’s grievance
on May 24, 2011, and June 13, 2011, and finally approved the
settlement of the grievance on September 12, 2011--after she filed
her federal complaint on August 22, 2011, and the lawsuit was
reported in the Wilkes-Barre Times Leader on August 23, 2011. (Doc.
3
30 ¶¶ 28, 31, 32.)
Defendants agree the Luzerne County Prison
Board tabled consideration of settlement of Plaintiff’s grievance
on May 24, 2011, and June 13, 2011.
(Doc. 32 ¶¶ 31, 32.)
Plaintiff was awarded a correctional counselor position with
back pay effective August 28, 2009.1
(Doc. 27 ¶ 28.)
became a correctional counselor on September 23, 2011.2
Plaintiff
(Doc. 27 ¶
29; Doc. 30 ¶ 29.)
The award of the correctional counselor position to Mr. Hetro
is at the heart of this litigation.
Therefore, Plaintiff’s and Mr.
Hetro’s qualifications for the position are relevant.
Plaintiff graduated from King’s College with a bachelor’s
degree in criminal justice, magna cum laude.
32 ¶ 44.)
(Doc. 30 ¶ 44; Doc.
She has an Associates Degree in criminal justice
counseling (Doc. 30 ¶ 48), Act 120 Police Academy certification
issued from Lackawanna College and was a member of Alpha Phi Sigma,
the National Criminal Justice Honor Society (Doc. 30 ¶¶ 49-50; Doc.
1
When Plaintiff was placed in the contested position in
September 2011, Mr. Hetro was placed into another correctional
counselor position which had been vacated by the termination of
another employee (Mr. Wydo). (Doc. 30 ¶ 51; Doc. 32 ¶ 51.) In
April 2011, Defendants allowed Mr. Hetro to successfully grieve the
original appointment of Mr. Wydo, years before, on the basis of Mr.
Wydo’s lack of initial qualifications, even though Mr. Hetro did
not grieve it at the time. (Doc. 30 ¶ 52.) Defendants state that
Mr. Hetro filed the grievance when he learned that Mr. Wydo did not
have the requisite qualifications. (Doc. 32 ¶ 52.)
2
Plaintiff was laid off from the Correctional Counselor
position on March 1, 2012, and is now a correctional officer.
(Doc. 27 ¶ 30; Doc. 30 ¶ 30.) This lay off is not disputed.
4
32 ¶¶ 49-50).
Mr. Hetro graduated from King’s College with a bachelor of
arts in criminal justice and a class rank of 232 out of 245.
27 ¶ 18; Doc. 30 ¶¶ 18, 45; Doc. 32 ¶ 45.)
(Doc.
He had a minor in
psychology and Act 120 certification from the police academy.
(Doc. 27 ¶ 18; Doc. 30 ¶ 18.)
Mr. Hetro also served as a uniformed
patrolman, was a junior counselor at Pennsylvania State Police Camp
Cadet, and was a member of the North American SWAT Training
Association.
(Doc. 27 ¶ 19; Doc. 30 ¶ 19.)
When Plaintiff worked as a corrections officer at the LCCF in
the main prison, she worked with both male and female inmates.
(Doc. 30 ¶ 40.)
Because only males were housed in the Minimal
Offenders Building where Mr. Hetro worked as a Correstions Officer
II, he worked only with males.
(Doc. 30 ¶ 43; Doc. 32 ¶ 43.)
The parties dispute Plaintiff’s prior experience and the
nature of the posted job duties.
(Doc. 27 ¶ 10; Doc. 30 ¶ 10.)
Defendants assert that, “before applying for the counselor
position, Plaintiff had no experience with any of the posted job
duties except counseling inmates on issues related to
institutional, vocational and/or community adjustment and/or
problems and working effectively with law enforcement and community
treatment providers and legal support.”
(Doc. 27 ¶ 10.)
Plaintiff
maintains that she “also had a working knowledge of all existing
post orders, policies, procedures and directives, . . . had
5
knowledge of basic computer programs . . .[,] performed security
duties as directed by the Warden[,] . . . and complied with
directives given by the Warden or Deputy Warden . . . .
10.)
(Doc. 30 ¶
Plaintiff adds that the posted job duties were not
qualifications for the position and could not have been performed
in their entirety except by a person in that position.
(Doc. 30 ¶
10.)
At their depositions, Defendant Piazza and Ms. Lombardo
provided explanations for the decision to hire Mr. Hetro in August
2009–-the decision which Plaintiff asserts violated Title VII’s
prohibition against discrimination on the basis of gender.
Defendant Piazza reported that Mr. Hetro’s qualifications and
experience were greater than Plaintiff’s–-testimony Plaintiff calls
self-serving, subjective conclusions and not statements of fact.
(Doc. 27 ¶ 24; Doc. 30 ¶ 24.)
Defendant Piazza reported that he
believed Mr. Hetro was a better job candidate because of the
following: his experience as a practical police officer gave him
practical experience with the criminal justice system; he had a
bachelor of arts degree in criminal justice, a minor in psychology,
and Act 120 certification; he presented as more self-confident; and
he had better communication skills.
(Doc. 27 ¶ 26.)
Plaintiff
also calls this testimony self-serving and not a statement of fact.
(Doc. 30 ¶ 26.)
Plaintiff adds that Defendant Piazza referenced
Mr. Hetro’s high school extra-curricular activities (Boy Scouts,
6
Explorers) and his attendance at a summer camp sponsored by the
Pennsylvania State Police among reasons why he believed Mr. Hetro’s
experience was better than Plaintiff’s.
(Doc. 30 ¶ 47.)
Defendant Piazza did not consider Mr. Hetro’s class rank and
considered that Mr. Hetro’s academic experience was better than
Plaintiff’s because he had more psychology courses.3
46.)
(Doc. 30 ¶
Defendant Piazza did not consider it important that Plaintiff
had received an Associates Degree in criminal justice counseling.4
(Doc. 30 ¶ 48.)
Ms. Lombardo reported that she recommended Mr. Hetro for the
correctional counselor position because of his knowledge of mental
health issues, his active use of his criminal justice degree, and
previous employment as a local police officer–-observations
Plaintiff calls self-serving, subjective conclusions and not
statements of fact.
(Doc. 27 ¶ 23; Doc. 30 ¶ 23.)
Ms. Lombardo
found Mr. Hetro to be more confident at his interview
(Doc. 27 ¶
3
Though Defendants deny this averment as stated (Doc. 32 ¶
46), Plaintiff’s citation to Defendant Piazza’s testimony supports
the assertion. (See Doc. 28-4 at 48-49 (Piazza Dep. 48:18-49:12).)
4
Though Defendants deny this averment as stated (Doc. 32 ¶
48), Plaintiff’s citation to Defendant Piazza’s testimony supports
the assertion–-Defendant Piazza responded affirmatively that he
“made note that Ms. Kosek had an associate degree in criminal
justice,” but when asked what consideration he gave the degree, he
stated that “some colleges just use a different term for the same
degree” and concluded that Plaintiff’s degree and Mr. Hetro’s
degrees “except for him having more psychology are pretty much
equal.” (See Doc. 28-4 at 49-50 (Piazza Dep. 49:14-50:11).)
7
21), another assertion Plaintiff disputes and labels self-serving
(Doc. 30 ¶ 21).
At her deposition, Ms. Lombardo stated she found that Mr.
Hetro and Plaintiff were relatively equal in their qualifications.
(Doc. 30 ¶ 37.)
Plaintiff stated Luzerne County had never employed
a female corrections counselor at the LCCF at the time of the
selection in question.
did not know of any.
(Doc. 30 ¶ 39.)
Ms. Lombardo stated she
(Doc. 28-2 at 20 (Lombardo Dep. 19:1-12).)
As noted above, Plaintiff filed the instant action on August
22, 2011.
(Doc. 1.)
She filed the Amended Complaint on September
26, 2012.
(Doc. 4.)
The Amended Complaint contains three counts:
Count I, a sex discrimination claim pursuant to 42 U.S.C. § 2000e2(a) against Defendant Luzerne County; Count II, an equal
protection claim based on sex discrimination filed pursuant to 42
U.S.C. § 1983 against Defendants Luzerne County and Joseph Piazza;
and Count III, a sex discrimination claim filed pursuant to the
Pennsylvania Human Relations Act, 43 Pa. C.S. § 955(a), against
Defendant Luzerne County.
(Doc. 4.)
Defendants filed the motion under consideration on October 1,
2012, seeking summary judgment on all claims contained in the
Amended Complaint.
(Docs. 25, 26.)
claims should go forward.
Plaintiff asserts that all
(Doc. 29.)
II. Discussion
A.
Summary Judgment Standard
Summary judgment is appropriate when the movant demonstrates
8
there is no “genuine issue as to any material fact.”
P. 56(a).
Fed. R. Civ.
“[T]his standard provides that 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."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”
Kaucher v. County of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S.
at 248).
In determining whether a genuine issue of fact exists, a
court must resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party.
Conoshenti v. Public
Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation
omitted).
The initial burden is on the moving party to show an absence
of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477
U.S. 317, 330 (1986) (citations omitted).
The moving party may
meet this burden by “pointing out to the district court [] that
there is an absence of evidence to support the nonmoving party’s
case when the nonmoving party bears the ultimate burden of proof.”
Id. at 325.
The non-moving party may not rest on the bare
allegations contained in his or her pleadings, but is required by
9
Federal Rule of Civil Procedure 56 to go beyond the pleadings by
way of affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give
rise to a genuine issue.
Id. at 324.
Where underlying facts are in dispute, the facts are viewed in
the light most favorable to the plaintiff.
Abramson v. William
Patterson College of N.J., 260 F.3d 265, 267 (3d Cir. 2001) (citing
Drinkwater v. Union Carbide Corp., 904 F.2d 853, 854 N.1 (3d Cir.
1990).
“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 conflicting evidence must be weighed, a
full trial is usually necessary.
B.
Defendants’ Motion
Defendants’ assert that Plaintiff’s sex discrimination claims
brought under Title VII, the Pennsylvania Human Relations Act
(“PHRA”), and the Equal Protection Clause fail as a matter of law.
(Doc. 26 at 6.)
1.
For the reasons discussed below we disagree.
Sex Discrimination under Title VII and the Pennsylvania Human
Relations Act
Defendants argue that Plaintiff’s sex discrimination claims
under Title VII (Count I) and the PHRA (Count III) must be
dismissed because Plaintiff has not shown that she was subject to
10
an adverse employment action or shown that the reasons for her
termination offered by Defendants were a pretext for gender
discrimination.
(Doc. 26 at 6-9.)
Gender discrimination claims under Title VII and the PHRA are
analyzed using the burden shifting framework set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
See, e.g., Atkinson
v. LaFayette College, 460 F.3d 447, 453-54 (3d Cir. 2006).
First,
the plaintiff must establish a prima facie case of sex
discrimination.
Id. at 454.
If she succeeds, the burden shifts to
the defendant to advance a legitimate, non-discriminatory reason
for its action.
Id.
If the defendant advances such a position,
the burden shifts back to the plaintiff to prove that the
nondiscriminatory explanation is merely pretext for discrimination.
Id.
a. Prima Facie Case
Defendant first argues Plaintiff cannot satisfy the elements
of her prima facie case.
We disagree
For a claim of gender discrimination, a plaintiff must
establish a prima facie case by demonstrating “(1) he is a member
of a protected class, (2) he is qualified for the job, (3)
defendant took an adverse employment action, and (4) the
circumstances surrounding the adverse action support an inference
of discrimination based on the plaintiff’s protected class.”
Moore
v. Shinseki, No. 11-4234, 2012 WL 2550479, at *1 (3d Cir. July 3,
11
2012) (not precedential) (citing Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253-54 (1981)).
Defendants maintain Plaintiff cannot meet the prima facie
requirements because she did not suffer an adverse employment
action in that she was given the correctional counselor position
with back pay and departmental seniority with the settlement of her
union grievance.
(Doc. 26 at 8-9 (citing Lewis v. Bell
Atlantic/Verizon, 321 F. App’x 217 (3d Cir. 2009) (not
precedential); Sarko v. Henderson, No. 2:03-CV-03473, 2004 WL
2440202 (E.D. Pa. Oct. 29, 2004)).)
Plaintiff maintains Defendants’ reliance on these cases is
misplaced because, in both Lewis and Sarko, the adverse action had
been reversed before the lawsuit was filed and here Plaintiff was
awarded the correctional counselor position and back pay after she
filed suit.
(Doc. 29 at 12.)
Plaintiff also asserts that she
received only a partial remedy with the position appointment and
backpay, adding it would be “grossly unfair to an employee who
underwent years of unlawful deprivation and was compelled to retain
counsel and file suit to vindicate her rights.”
(Doc. 29 at 12.)
In their reply brief, Defendants refute Plaintiff’s reliance
on the importance of the status of the allegedly adverse action at
the time of filing.
(Doc. 31 at 2-3.)
Defendants assert that in
the decisions cited, the timing of the plaintiffs’ commencement of
litigation was not relevant.
(Doc. 31 at 3.)
12
Defendants also
maintain that Plaintiff has not provided any authority to support
the distinction between a pre and post filing remedy.
(Doc. 31 at
2-3.)
We agree that the distinction between those cases where the
courts determined the plaintiff had been made whole pre filing and
therefore had not suffered an adverse employment action and the
post-filing remedy which occurred here is dispositive.
In Sarko,
the court noted that “[a]s of the filing of this action,
Plaintiff’s removal had been reversed as a result of the grievance
process and he has been reinstated by an arbitration award of back
pay and benefits.”
2004 WL 2440202, at *2 (emphasis added).
At
the time Plaintiff filed this action, she had not been assigned to
the correctional counselor position at issue, and had not been
awarded back bay and seniority.
Therefore, at the time of filing,
Plaintiff had suffered an adverse employment action for which no
relief had been granted.
After filing this action, Plaintiff may
have received some of the relief she is potentially entitled to
under Title VII.
However, 42 U.S.C. § 2000e-5(g)(1) allows for
injunctive and equitable relief beyond reinstatement or hiring and
the award of back pay.
See, e.g., Robinson v. Southeastern
Pennsylvania Transp. Authority, 982 F.2d 892, 899 n.7 (3d Cir.
1993) (“Title VII was amended in November of 1991 to authorize the
recover of compensatory and punitive damages.”)
Importantly,
Defendants, who bear the initial burden of showing that Plaintiff
13
cannot prove the elements of her prima facie case, Celotex, 477
U.S. at 330, have not presented any authority which supports the
proposition that a post-filing change of status which serves to
satisfy some damages sought by the plaintiff moots the relevant
claim where other damages allowed by statute remain available to
the plaintiff.
Therefore, Defendants have not met their burden of
showing they are entitled to judgment on Plaintiff’s Title VII and
PHRA claims based on their argument that Plaintiff cannot satisfy
the elements of her prima facie case.
b.
Pretext for Discrimination
Assuming arguendo that Plaintiff has suffered an adverse
employment action, Defendants also posit that Plaintiff has failed
to show the legitimate reasons offered by Defendants were a pretext
for gender discrimination.
(Doc. 26 at 10.)
We disagree.
As set out above, at the third stage of the McDonnell Douglas
framework, the plaintiff has the burden of showing that the
defendant’s proffered reason for its adverse action was a pretext
for discrimination.
460 F.3d at 454.
To survive a motion for summary
judgment, a plaintiff may prevail either by
discrediting the employer’s proffered reasons
or by showing that discrimination was more
likely than not a motivating or determinative
cause of the adverse employment action. See
Fuentes v. Perskie, 32 F.3d 759, 743 (3d Cir.
1994). “To discredit the employer’s
proffered reason . . . the plaintiff cannot
simply show that the employer’s decision was
wrong or mistaken. . . . Rather, the nonmoving plaintiff must demonstrate such
14
weaknesses, implausibilities,
inconsistencies, incoherencies, or
contradictions in the employer’s proffered
legitimate reasons for its actions that a
reasonable factfinder could rationally find
them.” Id. at 765. A plaintiff may support
an assertion that an invidious discriminatory
reason was more likely than not a motivating
cause by showing that “the employer has
treated more favorably similarly situated
persons not within the protected class.”
Jones v. School Dist. of Philadelphia, 198
F.3d 403, 413 (3d Cir. 1999).
Amfosakyi v. Frito Lay, Inc., , 2012 WL 3985308, at *5 (3d Cir.
Sept. 12, 2012) (not precedential).
Defendants maintain Plaintiff cannot show by a preponderance
of the evidence that the legitimate reasons offered by Defendant
Piazza for hiring Mr. Hetro rather than Plaintiff were a pretext
for discrimination and not his true reasons.
(Doc. 26 at 11.)
Specifically, Defendants cite the following reasons proffered by
Defendant Piazza for his conclusion that Mr. Hetro was the superior
candidate:
(1) his experience as a police officer gave
him practical experience with the criminal
justice system, i.e., dealing with the
public, participating in trials and
understanding sentencing, which gave him a
deeper insight into “what inmates go through”
outside the walls of the LCCF; (2) he had a
bachelor of arts in criminal justice, a minor
in psychology and Act 120 certification for
the police academy; (3) he presented as more
self-confident; and (4) had better
communication skills.
(Doc. 26 at 11 (citing Doc. 27 ¶¶ 24, 26).)
Defendants also point
to Ms. Lombardo’s testimony that she believed Mr. Hetro to be the
15
superior candidate for the following reasons:
(1) he was familiar with the Mental Health
Act and had training with respect to the 302
involuntary commitment process; (2) he was
actively using his criminal justice
background through his service as a local
police officer; and (3) she perceived Mr.
Hetro as being more confident and performing
better in his interview.
(Doc. 26 at 11 (citing Doc. 27 ¶¶ 19-20).)
Asserting that because
“Mr. Hetro’s educational qualifications, experience and interview
support the decision to hire him” (Doc. 26 at 13), Defendants
contend that “a reasonable fact finder, can, based upon the summary
judgment record, conclude that the proffered non-discriminatory
reasons for Mr. Hetro being hired over Plaintiff are ‘worthy of
credence’ and are not an after-the-fact-created-sham; accordingly,
Plaintiff’s Title VII, PHRA and equal protection claims must be
dismissed.”
(Doc. 26 at 13-14.)
Plaintiff frames the pertinent question as whether she has
“put forth evidence which establishes the existence of a genuine
issue of material fact as to whether the reasons stated post hoc by
the Defendants for her non-selection were pretextual pursuant to
Fuentes.”
so.
(Doc. 29 at 13.)
(Doc. 29 at 19.)
Plaintiff concludes that she has done
Specifically, Plaintiff points to the
following in support of her argument: 1) Defendants’ brief does not
address the fact that the collective bargaining agreement requires
the selection of the more senior candidate where their
qualifications “are relatively equal” (Doc. 29 at 13 (citing Doc.
16
30 ¶ 36)); 2) Ms. Lombardo testified that Plaintiff and Mr. Hetro
were relatively equal in their qualifications (Doc. 29 at 14
(citing Doc. 30 ¶ 37)); 3) Defendant Piazza agreed that Plaintiff
and Mr. Hetro were relatively equal in terms of qualifications and
physical fitness (Doc. 29 at 14 (citing Doc. 30 ¶ 36); 4) Defendant
Piazza combined the other three relevant categories–-experience,
ability, and efficiency--into a single category and concluded Mr.
Hetro was superior, but the reasons provided for this conclusion
could be considered by a jury to be weak, implausible or
incoherent; 5) Defendant Piazza gave greater weight to Mr. Hetro’s
experience and qualifications than to Plaintiff’s (Doc. 29 at 15-17
(citations omitted)); 6) Defendant Piazza had difficulty
articulating the relevance of some of Mr. Hetro’s “superior”
experience and qualifications (Doc. 29 at 15-17); 7) Ms. Lombardo’s
“supposed recommendation” of Mr. Hetro is suspect (Doc. 29 at 17-18
(citations omitted)); and 8) “a conclusion that Mr. Hetro’s and Ms.
Kosek’s qualifications were not relatively equal because Mr.
Hetro’s were so much superior is simply incredible” (Doc. 29 at
18).
Defendants reply that “Plaintiff misapprehends Fuentes” (Doc.
31 at 7): rather than standing for the proposition that “‘a jury is
entitled to consider whether Warden Piazza’s reasons are weak,
implausible or incoherent’” (id. (citing Doc. 29 at 13)), the
plaintiff must show the proffered legitimate reason is pretext
17
which “is a question for the jury only if Plaintiff can demonstrate
‘such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in Warden Piazza’s proffered legitimate reasons
such that a reasonable fact finder would find them ‘unworthy of
credence’” (id. (quoting Fuentes, 32 F.3d at 764-65)).
While we agree with Defendants that it is Plaintiff’s burden
to produce evidence sufficient to show that the case should go to a
jury, we also agree with Plaintiff that issues of credibility exist
in this case which preclude summary judgment in favor of Defendants
on Plaintiff’s Title VII and PHRA claims.
A jury could believe
Warden Piazza believed Mr. Hetro’s educational qualifications,
experience and interview supported the decision to hire him and
formed the basis of his decision (see Doc. 31 at 8), even if they
considered Defendant Piazza’s assessments wrong or mistaken.
However, Plaintiff has presented evidence which demonstrates
weaknesses in the proffered legitimate reasons–-evidence sufficient
to allow a jury to find the proffered reasons unworthy of credence.
Defendants discuss the collective bargaining agreement requirements
in their reply brief and assert “the qualifications, experience,
ability and efficiency of Plaintiff and Mr. Hetro to perform the
counselor position were not relatively equal.”
(citing Doc. 27 ¶¶ 24,26).)
(Doc. 31 at 4
However, the evidence cited by
Plaintiff shows that, in Defendant Piazza’s retelling, Plaintiff’s
qualifications and experience were not equally weighed and/or
18
valued for reasons which Defendant Piazza at times found difficult
to articulate.
(See Doc. 28-4 at 45-55.)
Similarly, Defendant
Piazza may have significantly inflated some of Mr. Hetro’s
experiences, experiences which he cited as part of the rationale
for his decision.
For example, the plausibility of a week at Camp
Cadet and involvement with MADD providing bases for Defendant
Piazza’s decision could contribute to a jury finding the proffered
reasons unworthy of credence and, therefore, call into question the
decision maker’s general credibility.
(Doc. 28-4 at 46-47, 52-53.)
Finally, Plaintiff has proffered evidence from which a reasonable
fact finder could reject Defendants’ reliance on Ms. Lombardo’s
testimony regarding her recommendation of Mr. Hetro.
(Doc. 29 at
17-18.)
In summary, while we agree with Defendants that a reasonable
fact finder “can” arrive at the conclusion that its proffered
reasons are worthy of credence (Doc. 26 at 13-14), we conclude that
Plaintiff has demonstrated “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence’ and
hence infer that the employer did not act for the asserted nondiscriminatory reasons.”
Fuentes, 32 F.3d at 764 (internal
quotations and citations omitted).
Because this is a case where
credibility determinations and the weighing of evidence are
19
necessary, summary judgment is not appropriate on Plaintiff’s Title
VII and PHRA claims.
2.
Equal Protection
Asserting that Plaintiff’s equal protection claim is analyzed
using the same framework as her Title VII and PHRA claims (Doc. 26
at 6), Defendants maintain that Plaintiff’s municipal liability
claim fails because Plaintiff’s Fourteenth Amendment equal
protection rights were not violated (id. at 14).
Plaintiff agrees that the Title VII analysis applies to
Plaintiff’s equal protection claim.
(Doc. 29 at 19.)
She asserts
this claim should be decided by a jury for the same reason as her
Title VII and PHRA claims should go forward.
Because we have concluded that Plaintiff’s Title VII and PHRA
claims go forward and because Defendants provide no additional
basis for the dismissal of Plaintiff’s equal protection claim, this
claim also goes forward.
III. Conclusion
For the reasons discussed above, Defendants’ Motion for
Summary Judgment (Doc. 25) is denied.
An appropriate Order
follows.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: November 30, 2012
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