# NRA Group, LLC v. Durenleau

> District Court, M.D. Pennsylvania · December 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10414103

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NRA GROUP, LLC, : Civil No. 1:21-CV-00715
:
Plaintiff, :
:
v. :
:
NICOLE DURENLEAU and :
JAMIE BADACZEWSKI, :
:
Defendants/Counterclaim :
Plaintiffs, :
:
v. :
:
NRA GROUP, LLC, STEVE KUSIC, :
and SHELL SHARMA :
:
Counterclaim Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court is a motion for partial summary judgment filed by NRA
Group (“NRA”) (Plaintiff and counterclaim Defendant), Steve Kusic (“Kusic”) and
Shell Sharma (“Sharma”) (counterclaim Defendants), and a motion for summary
judgment filed by Nicole Durenleau (“Durenleau”) and Jamie Badaczewski
(“Badaczewski”) (Defendants and counterclaim Plaintiffs). (Docs. 158, 161.) In its
amended complaint, NRA alleged that Defendants Durenleau and Badaczewski
committed violations of the Computer Fraud and Abuse Act (“CFAA”), both the
federal and state trade secrets act, breach of common law duty of loyalty, civil
conspiracy, and fraud. (Doc. 8.) In their amended answers, Durenleau and
Badaczewski allege they were subjected to various forms of sex-based harassment
under Title VII and the Pennsylvania Human Relations Act (“PHRA”). (Docs.

142, 143.) In its motion for summary judgment, NRA argues that there are no
genuine issues of material fact, and it is entitled to judgment as a matter of law on
both the claims it raises in the amended complaint and the counterclaims against it.

In their motion for summary judgment, Durenleau and Badaczewski argue there
are no genuine issues of material fact, and they are entitled to judgment as a matter
of law on NRA’s claims against them. For the reasons that follow, the court will
grant Durenleau and Badaczewski’s motion for summary judgment, and grant in

part and deny in part NRA, Kusic, and Sharma’s motion for summary judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
NRA is an “accounts receivable management company.” (Doc. 174, ¶ 1.)
Kusic is, and was at all relevant times, the Chief Executive Officer of NRA. (Doc.

162-8, ¶ 1.) Sharma is, and was at all relevant times, the Chief Operating Officer
of NRA. (Doc. 174, ¶ 411.) Durenleau started working at NRA on September 15,
2014, as a collector. (Id. ¶¶ 430–31.) During her time at NRA, Durenleau was

1 In considering the cross-motions for summary judgment, the court relied on Doc. 174 which
includes NRA’s statement of material facts (Doc. 161-5) along with Durenleau’s and
Badaczewski’s responses to these facts. The combined nature of this document made it easier
for the court to determine whether and to what extent facts were disputed. In accordance with
the relevant standard for deciding a motion for summary judgment, the court relied on the
uncontested facts, or where the facts were disputed, viewed the facts and deduced all reasonable
inferences therefrom in the light most favorable to the nonmoving party. See Doe v. C.A.R.S.
Prot. Plus, Inc., 527 F.3d 358, 362 (3d Cir. 2008).
promoted from a collector to client services representative, support services and
consumer resolution team lead, assistant manager, compliance manager, and

finally, in 2021, she was promoted to senior manager of compliance services. (Id.
¶¶ 431–49.) Badaczewski began working for NRA on September 14, 2020, as a
marketing employee. (Id. ¶¶ 160, 189.)

A. Facts Relating to Claims Alleged in NRA’s Amended Complaint
NRA has multiple layers of security for its computer system, including
firewalls, policies against working from home without a company-issued laptop
and VPN, multi-factor authentication, and policies against accessing the computer

system from personal devices. (Id. ¶¶ 6–12.) Further, NRA’s security manual
prohibits sharing login IDs and passwords or imitating another user. (Id. ¶¶ 19,
20.) NRA’s security manual also forbids storing passwords “in readable form, in
printable or written form or in any location where unauthorized personnel might

discover them.” (Id. ¶ 22.) NRA also has customer privacy policies, Fair Debt
Collection Practices Act (“FDCPA”) and Health Insurance Portability and
Accountability Act (“HIPAA”) policies, and workplace policies that prohibit using

company computers for personal use. (Id. ¶¶ 30–37.) NRA has confidentiality
policies, e-mail usage policies, and internet usage policies, which both Defendants
acknowledged at the time of their hire. The policies contain possible consequences
for violations, including termination. (Id. ¶¶ 171–208.)
It is undisputed that both Defendants were aware, generally, of all of these
policies, due to the signed declarations they executed at the beginning of their

employment. They also admitted multiple times in depositions that they were
aware of such policies. (Doc. 174.)
Durenleau was out of the office from January 4, 2021, through January 13,

2021, on COVID leave. (Id. ¶ 50.) Durenleau was not given a company computer
to access the computer system at home and could only access her company e-mail
account through her personal cell phone. (Id. ¶¶ 43, 46.) Durenleau was denied a
laptop and access to the physical office while on COVID leave. (Id. ¶¶ 52, 53.)

On the morning of January 6, 2021, Durenleau’s supervisor, Lisa Daube,
discovered that there was an issue with one of NRA’s state licenses that needed to
be resolved that day. (Id. ¶¶ 62, 67.) The issue required logging in to the National

Multistate Licensing System & Registry (“NMLS”). (Id. ¶ 71.) Durenleau
controlled portions of NMLS on behalf of NRA. (Id. ¶ 74.) Daube called
Durenleau to ask for her username and password to NMLS. (Id. ¶ 75.) Durenleau
told Daube she did not remember her password. (Id. ¶ 79.) Through text

messages, Daube asked Durenleau “can you resend Steve’s [Kusic] access to
NMLS?” and also wrote “I can have Doug sift your emails or you can share your
log on so we can pay this today.” (Id. ¶¶ 93, 94.)
Throughout the morning of January 6, when Durenleau was attempting to
assist her superiors in dealing with this issue, she was texting and calling

Badaczewski, who was at her office. (Id. at ¶¶ 82–95.) Durenleau provided
Badaczewski with her log on information to the NRA computer, Badaczewski
logged in as Durenleau from her (Badaczewski’s) computer, and Badaczewski

accessed a spreadsheet in Durenleau’s files containing Durenleau’s passwords.
(Id. ¶¶ 103–106.) Three minutes after the phone call with Badaczewski, Durenleau
relayed her NMLS credentials to Daube. (Id. ¶ 107.)
On the afternoon of January 6, 2021, Kusic sent Durenleau various emails

about this issue. At 12:20 pm, Kusic wrote,
We have a major compliance issue and it needs to be resolved today. I
can not figure out how to use NMLS in a short period of time. Please
let me know how YOU are going to get this fixed by the end of business
today. A reminder this is outstanding since December 16th.
(Doc. 162-1, p. 7.)
At 12:37 pm Durenleau responded, “I went on to NMLS I don’t see
anywhere to pay anything. I don’t have the papers. I am not sure what to do from
home.” (Id. at 8.) At 12:42 p.m., Kusic responded with the various outstanding
documents and also wrote “[t]his is outstanding since December 16th, it must be

finalized by the end of business today. How you do it, is your problem.” (Id.)
Less than a minute later, Durenleau responded “[a]ll of these were uploaded on
Wednesday.” (Id. at 9.) Kusic responded one minute later, “[t]he system says they
are outstanding, as of today. I am not learning NMLS today, get this License
Renewed TODAY!!!” (Id. at 9 (emphasis in original).) The issue was resolved by

2:14 pm. (Doc. 174, ¶ 122.)
On January 7, 2021, Badaczewski again logged in as Durenleau and emailed
the spreadsheet containing Durenleau’s passwords to Durenleau’s personal email

account and then to her work email account. (Id. ¶¶ 139, 155.) The password
spreadsheet contained “usernames, passwords and other credentials” for the
various web portals that NRA used in its debt collection business. (Id. ¶ 219.)
These portals contain personal information of consumers “including names, dates

of birth, social security numbers, utility bills, medical bills, financial account
information, and other information.” (Id. ¶ 220, 228.)
The spreadsheet also contained NMLS credentials for Durenleau, Kusic, and
his wife, Jill Kusic.2 (Id. ¶ 317.) These credentials allow access to a portal

containing personal information regarding the Kusics, such as social security
numbers, dates of birth, address, telephone, e-mail, background checks and credit
reports. (Id. ¶ 322.)

2 Jill Kusic is a co-owner and head legal counsel of NRA. (Id. ¶ 316.)
On January 22, 2021, Durenleau sent an e-mail to supervisors at NRA
regarding moving accounts out of the compliance “workgroup.”3 (Id. ¶ 361.) This

email prompted her supervisor, Lisa Daube, to ask Durenleau what she meant by
the email. (Id. ¶ 362.) The two had a meeting where Durenleau explained her
concerns and gave an example. (Id. ¶¶ 364, 365.) Daube did not agree with the

concern Durenleau raised or her example of moving accounts. (Id. ¶ 366.)
NRA conducted an audit of account movement in January 2021. (Id. ¶ 367.)
Anita Schaar (“Schaar”), Director of Internal Controls, performed the audit. (Id. ¶¶
367–69.)4 The audit showed that Durenleau moved 146 accounts that month, and

eleven had been moved after payment was received. (Id. ¶¶ 382, 383.) This
troubled Schaar because she believed there was no further work to be done on
these accounts, and by moving them, Durenleau would be credited for a bonus on

an account that had no further work to be done. (Id. ¶ 378, 381.) However,
Durenleau testified there could be additional work done after payment was
received. (Doc. 161-7, pp. 35–36.) 5 Durenleau testified she did work on these

3 “NRA uses workgroups to identify whether a collection action belongs to a specific employee
for purposes of bonuses and commissions.” (Id. ¶ 345.) In order to receive a bonus at NRA, an
employee had to “do something” on an account. (Id. ¶ 343.) What exactly this “something”
amounts to is unclear from the record. It is undisputed that Durenleau moved accounts into her
“workgroup” so that she could receive a bonus regarding these accounts. (Id. ¶¶ 352, 353.)

4 Schaar’s credibility is disputed because she does not have firsthand knowledge of how
bonusing works at NRA. (Id. ¶¶ 377–84.)

5 For ease of reference, the court utilizes the page numbers from the CM/ECF header.
accounts and moving these accounts was permitted because she had different
“ground rules” than the collectors. (Doc. 161-7, p. 34; Doc. 161-19, p. 33; Doc.

162-15.) While Schaar was performing the audit, Durenleau called Schaar asking
if she did something wrong. (Doc. 174, ¶ 387.) Various employees testified that
they considered what Durenleau did to be fraud and/or theft. (Id. ¶¶ 390–397.)

Durenleau moved a total of $3,042.85 in payments in January 2021. (Id. ¶ 358.)
Durenleau received a corrective action on February 2, 2021, outlining the allegedly
fraudulent activity, and warning Durenleau that she would be terminated with her
next violation, but she was not terminated at that time. (Id. ¶¶ 758–60.)

B. Facts Relating to Durenleau’s Harassment Claims
Within one year of her hire in 2014, in a one-on-one meeting in a conference
room, Kusic “suggested that Kusic and Durenleau picture each other naked to
assist with Durenleau’s fear of public speaking.” (Doc. 174, ¶ 461.) Kusic made

comments multiple times to Durenleau, stating “oh here’s the blonde again” and
“I’m talking to a blonde,” referencing her hair color at the time and implying she
was dumb. (Id. ¶ 462.) Around 2016 or 2017, Kusic referenced another employee

who went skinny dipping with him and speculated whether Durenleau would do
the same. (Id. ¶¶ 467, 568.) Durenleau immediately reported this comment to
Sharma, who took no action regarding it. (Id. ¶ 469.)
Sometime between 2014 and 2016, Tasey Leitzell, an HR employee, Schaar,
and Sharma joked in Durenleau’s presence that Durenleau should sleep with Kusic

so that Kusic would stop bothering them. (Id. ¶¶ 475, 476.) Durenleau responded
to this statement by laughing and stating “that would be disgusting[,]” “[he] can’t
afford me[,]” and “I would never take anything from [Kusic] to blow him or to

screw him.” (Id. ¶¶ 481–83.)
Between 2016 and 2019, Kusic asked Durenleau “how well does your man
have it at home.” (Id. ¶ 486.) Sometime in 2017 or 2018, Kusic wiped a cheese
curl over Durenleau’s lips and gave her a “funny look.” (Id. ¶ 492.) In 2019, there

was a malware incident at NRA and employees openly speculated that it was
because Kusic was watching pornography in his office. (Id. ¶ 499.)
On an unspecified date, Sharma relayed comments to Durenleau that other

people were making about her clothing. (Id. ¶ 504.) The content of these
comments is disputed, as NRA, Kusic, and Sharma characterize the comments as
Sharma telling Durenleau that an HR employee thought her “pants were too tight
or her skirt was too short,” and Durenleau claims Sharma told her “how [she was]

a whore and, you know, your pants are too tight, or your skirt’s too short.” (Id.
¶ 504.)
In 2015 or 2016, Sharma made several comments regarding another

employee’s weight including that she focused on food more than work, that this
employee’s desk would need cleaned from being full of food and made faces
insinuating this employee was fat. (Id. ¶¶ 511–16.) Sharma made multiple

comments during Durenleau’s employment about how large a female employee’s
breasts were. (Id. ¶ 529–26.)
Throughout Durenleau’s entire employment at NRA, fellow employee Tasey

Leitzell would comment loudly in her office “[i]f these trifling bitches would learn
how to swallow, we wouldn’t have to pay for their welfare[]” and “I’m so over this
job; having to clean the bathroom up after people; and then bitching about their
welfare.” (Id. ¶¶ 552–53.)

In 2020, Sharma made comments in Durenleau’s presence about a female
employee he was sexually interested in. (Id. ¶ 528.) Also in 2020, after Durenleau
interviewed Badaczewski, Durenleau, Sharma, and the head of HR met regarding

whether they should hire Badaczewski. (Id. ¶¶ 543, 546.) During this meeting,
one of the two men commented that Badaczewski was the type of girl Kusic liked.
(Id. ¶ 548.) In response, Durenleau stated, “you guys are gross [. . .] I could get her
before you.” (Id. ¶ 549.) Either Sharma or the head of HR requested that

Durenleau record any sexual relations between her and Badaczewski and send it to
them. (Id. ¶ 550.)
Durenleau testified that every day Sharma would put his arm around her hip

or shoulder in greeting. (Id. ¶¶ 561–62.) He also gave her shoulder and neck rubs.
(Id. ¶ 565.) Once, while Sharma had his arm around Durenleau, he “brushed down
[Durenleau’s] back and brushed over [her] butt.” (Id. ¶ 567.) Durenleau did not

tell Sharma not to hug her, but she did report this incident to HR. (Id. ¶ 566.)
On November 20, 2020, Durenleau was in her office with several of her
direct reports on speaker phone with a co-worker in another office building who

was complaining about a different co-worker. (Id. ¶¶ 577, 579.) Sharma walked
down the hall and witnessed the end of the conversation. (Id. ¶ 582.) Sharma then
entered Durenleau’s office, directed her direct reports to leave, and closed the door.
(Id. ¶ 586.) While discussing the appropriateness of criticizing other co-workers in

front of her direct reports, Sharma slapped Durenleau on the face. (Id. ¶¶ 595.) He
then said “I’ll take care of it on Monday” and abruptly left. (Id.)
Durenleau reported the incident to in-house counsel later that day, who

advised her to write everything down. (Id. ¶¶ 597–98.) Durenleau handwrote a
statement that night and then emailed it to in-house counsel on Monday. (Id.
¶¶ 600–01.) After receiving the statement, in house counsel emailed Durenleau
theorizing that this complaint arose from Durenleau feeling insecure in her job and

suggested how “a feeling of job insecurity could lead to interpreting a paternalistic
pat on the cheek that felt a bit more firm than usual, followed by a quick departure.
But, that interpretation appears to have been mistaken. Your job is secure.” (Doc.

174-8, p. 2.) Durenleau reported this incident to the Camp Hill Police on February
25, 2021. (Id. at ¶ 641.) Sharma was convicted of criminal harassment on May 6,
2021. (Doc. 143, ¶ 170.)

Durenleau resigned from NRA on February 21, 2021, and took a position as
a permitting and licensing manager at West Shore Homes. (Doc. 174, ¶ 779.) In
her resignation letter Durenleau stated,

I have been targeted and harassed at NRA Group, LLC for some time
now. The harassment was taken to a whole new level when Shell
Sharma slapped me across my face the end of November last year. Ever
since I made my complaint, I have been targeted to force me out of my
job. Emotionally, I cannot take this any more, and am therefore
resigning to free myself from this environment.
(Doc. 161-9, p. 16.)
C. Facts relating to Badaczewski’s Harassment Claims6
Badaczewski testified that she was subjected to sexual harassment “all day,
every day” during her employment at NRA, estimating there was at least 120
incidents. (Doc. 174, ¶ 829.) On one occasion, Kusic told Badaczewski that men
liked her because she had big boobs and blonde hair. (Id. ¶ 833.) Kusic frequently
questioned her intelligence, referencing her blonde hair. (Id. ¶ 834.) Badaczewski
and Kusic would discuss Badaczewski’s sex life, and Kusic would comment on it.
(Id. ¶ 836.) Badaczewski testified in an interview with a detective related to this

6 The court notes that Plaintiff alleges a multitude of other facts regarding Badaczewski’s
character, such as facts showing that Badaczewski has a “drinking problem” due to her texting
Kusic while intoxicated and her criminal record reflecting a public intoxication charge. . The
court is not including the extraneous facts alleged by Plaintiff in this section because they have
no bearing on the resolution of the pending motions.
case, “he never touched me, he never made advances at me. But he made
comments about, like, my body and me having sexual intercourses with men.”

(Doc. 162-7, p. 19.) On January 28, 2021, Badaczewski emailed HR regarding
Kusic being condescending, not training her, and insulting her intelligence, and she
also told other supervisors that Kusic was “constantly talk[ing] about me being

blonde and having big boobs.” (Doc. 161-13, pp. 24–25; Doc. 174, ¶ 866.)
Badaczewski allegedly kept a notebook containing all of the incidents of sexual
harassment, but she no longer knows where that notebook is. (Doc. 174, ¶¶ 875–
82.)

On March 19, 2021, Badaczewski and Kusic took a trip to two local candy
stores in order to buy candy for clients and an office event. (Id. ¶ 889.)7 On this
trip, Kusic bought Badaczewski candy and then asked if other guys buy her as

many gifts as he does. (Doc. 161-11, p. 220.) While they were on this trip,
personnel at NRA discovered that Badaczewski had been the person to log in to
Durenleau’s account on January 6 and 7. (Doc. 174, ¶ 901.) Upon his return to the
office, Kusic became aware of this fact and decided to terminate Badaczewski’s

employment. (Id.) Badaczewski’s desk was emptied the next day, March 20,

7 Plaintiff’s counsel quibbles that Badaczewski “falsely” alleged the two went to “Hershey Park”
when they actually went to “Hershey’s Chocolate World.” (Doc. 161-4, p. 124.) The court notes
that these two locations are next to each other, share a parking lot, and can be referenced
collectively.
2021. (Id. ¶ 910.) Badaczewski arrived at the office that day and was presented a
corrective action report which terminated her employment. (Id. ¶ 915.)

D. Procedural History
NRA filed the initial complaint on April 16, 2021, which named only
Durenleau as a defendant, alleging one count of violation of the CFAA. (Doc.1.)
On May 19, 2021, NRA filed an amended complaint adding Badaczewski and

three more CFAA claims, a violation of the Defend Trade Secrets Act (“DTSA”), a
violation of the Pennsylvania Uniform Trade Secrets Act (“PUTSA”), a civil
conspiracy claim, a breach of common law duty of loyalty claim, and a fraud claim

against Durenleau only. (Doc. 8.) Thereafter, on June 18, 2021, Durenleau
answered the complaint and raised counterclaims against NRA including a claim of
negligent hiring and retention, alleging various inappropriate comments made by
NRA employees and the slap incident with Sharma. (Doc. 16.) On July 20, 2021,

Badaczewski answered the complaint, raising one count of sexual harassment
under Title VII, one count of quid pro sexual harassment under Title VII, and one
count of retaliation under Title VII. (Doc. 24.)

On July 28, 2021, Durenleau filed an amended answer, alleging one count of
sexual harassment under Title VII, one count of quid pro sexual harassment under
Title VII, and one count of retaliation under Title VII. (Doc. 25.) NRA answered
Badaczewski’s counterclaims on August 10, 2021. (Doc. 31.) NRA answered
Durenleau’s counterclaims on August 17, 2021. (Doc. 33.) Over one year of
highly contentious discovery followed.

Durenleau and Badaczewski were granted leave to amend their
counterclaims on November 10, 2022. (Doc. 141.) Thereafter, on November 10,
2022, both Durenleau and Badaczewski filed amended answers with

counterclaims, adding Kusic and Sharma as counterclaim defendants by adding
PHRA claims which mirrored the Title VII claims but also alleged individual
liability. (Docs. 142, 143.) NRA, Kusic, and Sharma answered the amended
counterclaims on November 23, 2022. (Docs. 144, 145.)

The parties filed simultaneous motions for summary judgment on May 15,
2023. (Docs. 158, 161.) Both motions have been fully briefed and are now ripe
for disposition.

JURISDICTION AND VENUE
This court has jurisdiction under 28 U.S.C. §§ 1331 because all parties bring
claims arising from federal statutes. This court also has supplemental jurisdiction
over state law tort and PHRA claims under 28 U.S.C. § 1367 because the state law

claims are sufficiently related to the federal claims. Venue is appropriate under 28
U.S.C. § 1391 because all actions or omissions alleged occurred in the Middle
District of Pennsylvania.
STANDARD OF REVIEW
A court may grant a motion for summary judgment when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of
the dispute “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “A
dispute is genuine if a reasonable trier-of-fact could find in favor of the
nonmovant’ and ‘material if it could affect the outcome of the case.” Thomas v.

Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).
In reviewing a motion for summary judgment, the court must view the facts
in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288
(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the
court’s role in reviewing the facts of the case is “to determine whether there is a
genuine issue for trial.” Id.
The party moving for summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then
oppose the motion, and in doing so “‘may not rest upon the mere allegations or
denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that
there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.
Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).
Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
The court will first address NRA’s claims against Durenleau and

Badaczewski, on which there are competing motions for summary judgment. The
court will then review Durenleau’s and Badaczewski’s counterclaims, on which
NRA, Kusic, and Sharma have moved for summary judgment.
A. NRA’s Claims against Durenleau and Badaczewski

The court will begin with Durenleau and Badaczewski’s motion for
summary judgment because the court’s resolution of their motion will resolve each
of these claims. Durenleau and Badaczewski argue that there is no evidence
supporting any of NRA’s claims, which entitles them to judgment as a matter of

law. (Doc. 160.) Conversely, NRA argues they are entitled to judgment as a
matter of law because the facts underlying all of the claims in their amended
complaint are undisputed. (Doc. 172.)

1. Computer Fraud and Abuse Act Claims
NRA brings four claims of computer fraud under the CFAA all relating to
the incident on January 6 and 7, 2021 when Durenleau was asked by her superiors
to resolve a work issue while out of the office on COVID leave, without access to a

work computer.8 It is undisputed that Durenleau asked Badaczewski to access

8 Count 1 alleges a violation of 18 U.S.C. § 1030(a)(2)(C). (Doc. 8.) Count 2 alleges a violation
of 18 U.S.C. § 1030(a)(4). (Id.) Count 3 alleges a violation of 18 U.S.C. §1030 (a)(5)(c). (Id.)
Count 4 alleges a violation of 18 U.S.C. § 1030 (a)(6). (Id.)
Durenleau’s desktop to send Durenleau her passwords in order to enable Durenleau
to resolve this issue. Durenleau and Badaczewski argue there is no evidence

showing they exceeded their authorized access in violation of the CFAA because
they were both authorized to access NRA’s computer systems by virtue of their
employment, Durenleau’s position as compliance manager, and the implicit

demands by supervisors to complete this task. (Doc. 160, pp. 12–17.) They also
argue that there is no evidence of intent to defraud under subsections (a)(4) and
(a)(6). (Id. at 17–19.) NRA responds that neither Durenleau nor Badacezwski
were authorized to access the NRA computers because they were not authorized to

access the NRA computer system from their homes, and Badaczewski’s entry into
Durenleau’s desktop was unauthorized access in contravention of NRA computer
and security policies. (Doc. 172, pp. 8–13.)

The purpose of the CFAA is to “address the growing problem of computer
hacking, recognizing that, ‘[i]n intentionally trespassing into someone else’s
computer files, the offender obtains at the very least information as how to break
into that computer system.’” United States v. Nosal, 676 F.3d 854, 858 (9th Cir.

2012); see also Dresser-Rand Co. v. Jones, 957 F. Supp. 2d 61, 613–14 (E.D. Pa.
2013) (analogizing the limitations of the CFAA as akin to burglary). Additionally,
courts within this Circuit have cautioned that:

The CFAA “remains primarily a criminal statute designed to combat
hacking,” and, as such, jurisprudential care should be taken not to
“contravene Congress’s intent by transforming a statute meant to target
hackers into a vehicle for imputing liability to [defendants] who access
computers or information in bad faith.”
Christian v. Lannett Co., No. 16-963, 2018 U.S. Dist. LEXIS 52793, at *16 (E.D.
Pa. Mar. 29, 2018) (quoting QVC, Inc. v. Resultly, LLC, 159 F. Supp. 3d 576, 590
(E.D. Pa. 1990)). With this background and purpose in mind, the court turns to the
claims at hand.

Because it is the broadest subsection, the court starts with Count III, alleging
a violation of 18 U.S.C. § 1030(a)(5)(C), which provides, “[w]hoever . . . (C)
intentionally accesses a protected computer without authorization, and as a result

of such conduct, causes damage and loss . . . shall be punished as provided in
subsection (c) of this section.” While “authorization” under the CFAA has not yet
been defined by the Third Circuit, courts within the circuit have explained that “an
employee is ‘authorized to access a computer when his employer approves or

sanctions his admission to that computer.’” Teva Pharms. USA, Inc. v. Sandhu, 291
F. Supp. 3d. 659, 670 (E.D. Pa. 2018) (quoting Dresser–Rand, 957 F. Supp. 2d at
617). Further, “those who have permission to access a computer for any purpose,

such as employees, cannot act ‘without authorization’ unless and until their
authorization to access the computer is specifically rescinded or revoked.” QVC,
Inc., 159 F. Supp. at 595.
Indeed, “an employee granted access to a computer in connection with his
[or her] employment is ‘authorized’ to access that computer under the CFAA

regardless of his or her intent or whether internal policies limit the employee’s use
of the information accessed.” ClinMicro Immunology Ctr., LLC v. PrimeMed,
P.C., No. 3:11-CV-2213, 2016 U.S. Dist. LEXIS 88774, at *27 (M.D. Pa. July 7,

2016) (collecting cases), report and recommendation adopted by 2016 U.S. Dist.
LEXIS 99608 (M.D. Pa. July 29, 2016).
It is undisputed that Durenleau and Badaczewski were authorized to access
the NRA computer system by virtue of their employment with NRA. (Doc. 159,

¶ 8; Doc. 174, ¶ 161.)9 Because both Durenleau and Badaczewski were authorized
to access the protected computer, there is no violation of 18 U.S.C.
§ 1030(a)(5)(C), and Durenleau and Badaczewski’s motion for summary judgment

will be granted as to Count III.
Counts I and II allege violations under §§ 1030(a)(2)(C)10 and (a)(4), 11
which prohibit unauthorized access as well as exceeding one’s authorization. The

9 NRA’s argument that Durenleau was not “authorized” to access her files from home is actually
arguing that Durenleau exceeded the authorization given to her by accessing her files in a
manner that is proscribed by NRA’s computer use policies, as will be explained below.

10 “Whoever . . . (2) intentionally accesses a computer without authorization or exceeds
authorized access and thereby obtains . . . (c) information from any protected computer . . . shall
be punished as provided in subsection (c) of this section.” 18 U.S.C. § 1030(a)(2)(C).

11 “Whoever . . . (4) knowingly and with intent to defraud, accesses a protected computer
without authorization, or exceeds authorized access, and by means of such conduct furthers the
CFAA defines “exceed[ing] authorized access” as “access[ing] a computer with
authorization and [using] such access to obtain or alter information in the computer

that the accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6). The
recent Supreme Court case Van Buren v. United States, 141 S. Ct. 1648 (2021),
sheds light on the appropriate interpretation of “exceeds authorized access.” In

Van Buren, a police officer used a police department database, which he was
authorized to access by virtue of his employment, to run a license plate search for
someone who had bribed him to do so. Id. at 1652. The United States argued the
phrase:

“is not entitled so to obtain” refers to “the information not allowed to
[be] obtain[ed] in the particular manner or circumstances in which he
obtained it. The manner or circumstances in which one has a right to
obtain information . . . are defined by any “specifically and explicitly”
communicated limits to one’s right to access information.
Id. at 1654–55 (emphasis in original). In contrast, Van Buren argued that the
statute requires a “gates-up-or-down” inquiry, and that since he was authorized to
access the computer, it did not matter that he later used that access in contravention
of department policies. Id. at 1658–59.

intended fraud and obtains anything of value, unless the object of the fraud and the thing
obtained consists only of the use of the computer and the value of such use is not more than
$5,000 in any 1-year period . . . shall be punished as provided in subsection (c) of this section.”
§ 1030(a)(4).

The Court adopted Van Buren’s argument and reasoned that interpreting
“authorization” and “exceeding authorization” to mean “one either can or cannot

access a computer system, and one either can or cannot access certain areas within
the system[]” aligns better with “the computer-context understanding of access as
entry.” Id. at 1658–59. The Court further disavowed relying on computer use

policies as the basis for liability under the CFAA, because “[i]f the ‘exceeds
authorized access’ clause criminalizes every violation of a computer-use policy,
then millions of otherwise law-abiding citizens are criminals.” Id. at 1661.12
Here, Durenleau was authorized to access her computer and the files within

that computer by virtue of her employment at NRA and having the credentials to
access their computer system. NRA’s argument that she was not “authorized” to
access her computer at home because NRA computer policies forbid such a

practice is actually arguing that she exceeded her authorized access by accessing
her computer in a prohibited manner. NRA’s argument is that: Durenleau’s
authorization to access the computer was given to her by virtue of her employment;
NRA does not allow their employees to use their authorized access in a certain

12 Other courts have also warned against basing CFAA liability on violations of internal policies
because doing so would “allow[] private parties to manipulate their computer-use and personnel
policies so as to turn these relationships into ones policed by the criminal law.” Nosal, 676 F.3d
at 860. See also Carnegie Strategic Design Engineers, LLC v. Cloherty, No. CIV.A. 13-1112,
2014 WL 896636, at *9 (W.D. Pa. Mar. 6, 2014) (“Plaintiff cannot state a claim under the CFAA
by transforming its employee policies which prohibited the using of the computer system for
anything other than business purposes into a violation of the CFAA.”).
way, i.e. from their homes without specific equipment; and Durenleau accessed her
computer in a way not authorized by company policy. Accordingly, accepting

NRA’s argument that Durenleau exceeded authorized access by accessing the
computer in the wrong way would require the court to utilize the definition of
“exceeding authorized use” that the Supreme Court rejected in Van Buren.

The definitional limitation established in Van Buren is particularly
significant in light of the purpose of the CFAA. As explained in Dresser-Rand
Co.,
An analogy to burglary provides clarity to the limitations of the CFAA:
“If a person is invited into someone’s home and steals jewelry while
inside, the person has committed a crime—but not burglary—because
he has not broken into the home. The fact that the person committed a
crime while inside the home does not change the fact that he was given
permission to enter.” Thomas E. Booms, Hacking into Federal Court:
Employee “Authorization” Under the Computer Fraud and Abuse Act,
13 VAND. J. ENT. & TECH. L. 543, 571 (2011).
Dresser-Rand Co., 957 F. Supp. 2d at 614. Applying this burglary analogy here
shows why Badaczewski and Durenleau are not liable under the CFAA. Both had
permission to enter the (metaphorical) home. Instead of entering the home through
the door, they entered through a window. Conditioning their entry into the home
upon only using the door does not make their subsequent entry through the window
a burglary. It may be a reason to not invite them back to the home, but it is not a
burglary.
Thus, applying the appropriate definition, there is no issue of material fact
regarding whether Durenleau was authorized to access the computer system,

generally, and her files, specifically. Further, she did not exceed her authorized
access by emailing a work document to her personal email. Although these actions
may have violated NRA’s computer use policies, she was authorized to access

those files by virtue of her employment. In other words, Durenleau came in
through the window rather than the door, which is not a violation of the CFAA.
Additionally, NRA argues that Badaczewski exceeded her authorization by
logging into Durenleau’s desktop, accessing the spreadsheet, and emailing it to

Durenleau’s personal email address because Badaczewski was not authorized to
access Durenleau’s files. (Doc. 163, p. 40.) NRA argues that no person at NRA
explicitly told Durenleau or Badaczewski to take this course of action, and thus,

Badaczewski’s access of Durenleau’s computer was unauthorized. (Id. at 34.)
While Durenleau was not explicitly told “share your NRA password and let Jamie
Badaczewski log in to your computer and send you your passwords,” as NRA
seems to think the statute requires, the context of this incident shows that

Durenleau authorized Badaczewski to access this information.
Durenleau, the senior compliance manager, was at home sick with COVID,
when her superiors brought an urgent work issue to her attention. She was denied

a company computer to access the computer system at home and could only access
her company e-mail account through her personal cell phone. In order to solve this
issue, she needed to give her supervisor a password to an online portal. The CEO

of NRA then began emailing Durenleau, emphasizing that she needed to fix the
problem by the end of the day and that how she did that was her “problem.”
Accordingly, in order to perform her job without the necessary computing devices,

she authorized her co-worker to access her own files and locate the needed
password. The next day, Durenleau directed Badaczewski to send the whole
spreadsheet. These circumstances are a far cry from the hacking that the CFAA
was enacted to prevent.

While having Badaczewski access Durenleau’s desktop and send the
password spreadsheet may have been a violation of NRA policies and worthy of an
employment sanction, it is not a violation of the CFAA. Therefore, neither

Durenleau nor Badaczewski accessed a protected computer without authorization
or exceeded their authorization. As a result, Durenleau and Badaczewski’s motion
for summary judgment will be granted as to Counts I and II.
Count IV alleges a violation of 18 U.S.C § 1030(a)(6), which provides:

Whoever . . . knowingly and with intent to defraud traffics (as defined
in section 1029) in any password or similar information through which
a computer may be accessed without authorization, if . . . such
trafficking affects interstate or foreign commerce . . . shall be punished
as provided in subsection (c) of this section.
In the copious briefing in this case, neither party has provided the court with a
definition of “intent to defraud” as used in the CFAA. However, other courts have

held that, under the CFAA, an intent to defraud “only requires a showing of
unlawful access; there is no need to plead the elements of common law fraud to
state a claim under the Act.” eBay Inc. v. Digital Point Sols., Inc., 608 F. Supp. 2d

1156, 1164 (N.D. Cal. 2009) (citing Hanger Prosthetics & Orthotics, Inc. v.
Capstone Orthopedic, Inc., 556 F. Supp. 2d 1122, 1131 (E.D. Cal. 2008)).
NRA’s argument regarding whether Durenleau and Badaczewski had an
intent to defraud consists of restating its allegations that Durenleau and

Badaczewski were not authorized to take these actions, pointing to Durenleau’s
statement that giving her NMLS credentials to her supervisor would have been
“dumb” because her supervisor did not like her, arguing that Badaczewski’s access

to Durenleau’s desktop exceeded Badaczewski’s authorized access, and arguing
that sending the password spreadsheet in an unencrypted email shows Durenleau
and Badaczewski “knowingly and intentionally exposed the confidential
information [NRA] is entrusted with protecting, but did so with the clear intent to

use the information to cause [NRA] financial and reputational harm.” (Doc. 172,
pp. 17–19.) NRA also attempts to support their assertion that Durenleau or
Badaczewski further disseminated the spreadsheet by pointing to testimony of

Sharma, where he speculates that NRA losing their $10 million cyber insurance
coverage six months after the incident was due to the emailed spreadsheet because
Durenleau was one of the only people who knew of this coverage and that a recent

fraudulently filed unemployment claim under Kusic’s name was due to the
personal information contained in the spreadsheet. (Id. at 18.)
As explained above, Durenleau and Badaczewski did not unlawfully access

NRA’s computers. There is no further evidence in the record, beyond Sharma’s
unsubstantiated speculation, showing an intent to defraud NRA in any way.
Speculations are not sufficient to support summary judgment, and therefore,
Durenleau and Badaczewski’s motion for summary judgment will be granted as to

Count IV. See Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288–89 (3d Cir.
2018).
2. Trade Secrets Claims
NRA brings one count of violating the DTSA13 and one count of violating

the PUTSA14 on the premise that the password spreadsheet allowed access to the
multiple online portals utilized by NRA, which contain personal and confidential
information of its customers and consumers. (Doc. 172, p. 20.) Durenleau and

Badaczewski argue that the password spreadsheet does not contain trade secrets
because the passwords do not have independent economic value. (Doc. 160,

13 18 U.S.C. § 1836.

14 12 PA. CON. STAT. § 5306.
p. 20.) NRA responds that the password spreadsheet is a trade secret because the
passwords on that spreadsheet would allow access to a “myriad” of customers’

personal information which has value to cyber criminals. (Doc. 163, p. 49.)
Because the DTSA and PUTSA protect the same type of information, the
court will consider these claims together. PharMerica Corp. v. Sturgeon, No.

2:16-CV-1481, 2018 WL 1367339, at *4 (W.D. Pa. Mar. 16, 2018). Under both
the DTSA and PUTSA, a trade secret is “information that: (a) the owner has taken
reasonable means to keep secret; (b) derives independent economic value, actual or
potential, from being kept secret; (c) is not readily ascertainable by proper means;

and (d) others who cannot readily access it would obtain economic value from its
disclosure or use.” Id. at *4.
To determine whether information is a trade secret, a court must consider:

the extent to which the information is known outside of the owner’s
business, the extent to which it is known by employees and others
involved in the owner’s business, the value of the information to the
owner and his competitors, the amount of effort or money expended in
developing the information, and the ease or difficulty with which the
information could be acquired or duplicated by others. S.I. Handling
Systems, Inc. v. Heisley, 753 F.2d 1244, 1256 (3d Cir.1985).
Crown Coal & Coke Co. v. Compass Point Res., LLC, No. CIVA 07-1208, 2009
WL 891869, at *6–7 (W.D. Pa. Mar. 31, 2009); see also Bimbo Bakeries USA, Inc.
v. Botticella, 613 F.3d 102, 109 (3d. Cir. 2010).
Additionally, “[a] compilation of data that has independent economic value
can be protected as a trade secret.” Synthes, Inc. v. Emerge Med., Inc., 25 F. Supp.

3d 617 (E.D. Pa. 2014). Further, “compilation of customer data may qualify as a
trade secret if it is not readily obtainable from another source and was generated in
such a fashion that it constitutes intellectual property of the owner.” Bro-Tech

Corp. v. Thermax, Inc., 651 F. Supp. 2d 378, 409 (E.D. Pa. 2009).
Durenleau and Badaczewski rely on State Analysis, Inc. v. American
Financial Services Association, 621 F. Supp. 2d 309 (E.D. Va. 2009), for their
argument that passwords cannot be trade secrets. In State Analysis, defendant, a

former customer of plaintiff, shared its passwords which accessed plaintiff’s
databases, with one of plaintiff’s competitors. State Analysis, 621 F. Supp. 2d at
314. The court held that passwords themselves are not information but rather are a

barrier to the information which is properly called a trade secret. Id. at 321. The
court further reasoned that “[a]lthough the passwords at issue clearly have
economic value . . . , they have no independent economic value in the way a
formula or a customer list might have.” Id. (emphasis in original). 15

15 NRA distinguishes this case by arguing that it applies the Virginia trade secrets law. However,
as with the Pennsylvania trade secrets law, the Virginia trade secrets law is essentially the same
as the federal trade secrets act. Further, the two cases NRA cited to support its argument are
both from California and apply the California trade secrets law.
NRA cites two cases for the proposition that passwords can be trade secrets.
(Doc. 163, p. 48.) However, both of these cases were decided at the motion to

dismiss stage and held that passwords coupled with other information could state a
claim for misappropriation of trade secrets. PhoneDog v. Kravitz, No. C 11-03474,
2011 WL 5415612 (N.D. Cal. Nov. 8, 2011); TMX Funding, Inc. v. Impero Techs.,

Inc., No. C 10-00202 JF (PVT), 2010 WL 2509979, at *3 (N.D. Cal. June 17,
2010). As such, these cases are not persuasive, and the court will apply State
Analysis, which is more relevant to the analysis here.
The password spreadsheet has no value outside of the access it gives to the

web portals. The information on the web portals themselves may potentially be
trade secrets, but that information was not shared and is not at issue here. NRA
advances plenty of arguments regarding the various web portals the passwords

access and the confidentiality of the information therein, but these arguments do
not prove that the passwords have any independent economic value. Rather, these
arguments show that the spreadsheet itself has no independent value; the value is in
portals that the passwords access. Accordingly, the password spreadsheet has no

independent economic value and is not a trade secret. Thus, Durenleau and
Badaczewski’s motion for summary judgment will be granted as to Counts V and
VI.
3. Civil Conspiracy
Durenleau and Badaczewski argue they are entitled to summary judgment on

the civil conspiracy claim, Count VII, because there are no facts supporting
malicious intent for either of them. (Doc. 160, pp. 23–24.) NRA argues that a
conspiracy should be inferred from Durenleau and Badaczewski’s communications
on January 6 and 7, 2021 when they agreed to violate the CFAA, DTSA and

PUTSA. (Doc. 163, p. 65.)
In Pennsylvania, a civil conspiracy requires a showing of “(1) a combination
of two or more persons acting with a common purpose to do an unlawful act or to

do a lawful act by unlawful means; (2) an overt act done in pursuance of the
common purpose; and (3) actual legal damage.” Bro-Tech Corp, 651 F. Supp. 2d
at 418. Moreover, “[p]roof of malice, i.e., an intent to injure, is essential in proof
of a conspiracy . . . . Malice requires . . . that the sole purpose of the conspiracy

was to injure the plaintiff,’ and that this intent was without justification.” Synthes,
25 F. Supp. 3d at 735–36 (quoting Doltz v. Harris & Assoc., 280 F. Supp. 2d 377,
389 (E.D. Pa. 2003)). Finally, a civil conspiracy claim must be based on an

underlying tort, and “only a finding that the underlying tort has occurred will
support a claim for civil conspiracy. Id.
Here, because the court has found that Durenleau and Badaczewski did not
violate the CFAA, DTSA, or PUTSA, there can be no civil conspiracy to engage in
some type of unlawful activity. Moreover, there is no evidence in the record
demonstrating any intent to harm NRA by their actions on January 6 and 7, 2021.

NRA argues that Durenleau and Badaczewski’s knowledge of the computer and
confidentiality policies, and then their subsequent violation of them, show an intent
to injure NRA. (Doc. 172, p. 30.) However, the malice requirement demands that

the only purpose of the conspiracy is to injure the plaintiff. Synthes, 25 F. Supp.
3d at 736. Here, there is sufficient evidence that Durenleau and Badaczewski were
trying to help NRA by resolving the licensing issue, despite not being set up to
succeed by NRA. Therefore, Durenleau and Badaczewski’s motion for summary

judgment will be granted as to Count VII.
4. Breach of Common Law Duty of Loyalty
Durenleau and Badaczewski argue they are entitled to summary judgment on
Count VIII, breach of common law duty of loyalty, because there is no evidence

that they used the password spreadsheet to compete with NRA. (Doc. 160, p. 26.)
NRA argues that creating and sending the password spreadsheet was contrary to
NRA’s interests, and that Durenleau’s alleged mishandling of a license issue was

also contrary to NRA’s interests. (Doc. 172, pp. 39–42.)
To prove a claim of breach of the common law duty of loyalty in
Pennsylvania, a plaintiff must show there was an agency relationship and that:
[1] the defendant negligently or intentionally failed to act in good faith
and solely for the benefit of plaintiff in all matters for which he or she
was employed; (2) that the plaintiff suffered injury; and (3) that the
agent’s failure to act solely for the plaintiff’s benefit . . . was a real
factor in bring[ing] about plaintiff’s injuries.
McDermott v. Party City Corp., 11 F. Supp. 2d 612, 626 n.18 (E.D. Pa. 1998).
Further, the agent must:
refrain from competing with the principal and from taking action on
behalf of, or otherwise assisting, the principal’s competitors throughout
the duration of the agency relationship, as well as . . . not to use property
or confidential information of the principal for the agent’s own purpose
or those of a third party.
Synthes, 25 F. Supp. 3d at 667 (citing RESTATEMENT (THIRD) OF AGENCY §§ 8.04,
8.05).
Here, there is no evidence that Durenleau or Badaczewski used this
spreadsheet to compete with NRA at all. As NRA points out, liability for breach of
common law duty of loyalty can also be founded upon using the principal’s
property or confidential information for the agent’s own purposes or a third

party’s. See RESTATEMENT (THIRD) OF AGENCY § 8.04. However, there is also no
evidence that Durenleau or Badaczewski used the information in any way other
than to resolve the licensing issue on January 6, 2021, as requested.

NRA argues that the mere creation and sending of the spreadsheet contrary
to NRA policies shows that Durenleau and Badaczewski acted against NRA’s
interests. However, the evidence of record shows that Durenleau and Badaczewski
were acting in NRA’s interest by trying to resolve the license issue and did not use
the spreadsheet or the information in it for any other reason than to complete their
job duties.

NRA also argues that Durenleau breached her duty of loyalty to NRA by
failing to respond to a deficiency notice sent on January 29, 2021, regarding the
same license that was the issue on January 6, 2021. (Doc. 172, p. 41.) This issue

is raised in the brief supporting NRA’s motion for summary judgment and
tangentially in the brief in opposition to Durenleau’s motion. (Doc. 163, p. 73.)
Durenleau argues that this issue is being raised for the first time on summary
judgment, and therefore, should not be considered by the court. (Doc. 173, p. 23.)

NRA argues that raising this issue for the first time on summary judgment is
appropriate because the license at issue is the same one the parties were trying to
resolve on January 6, 2021, such that Durenleau had notice that this license was at

issue, NRA requested documents in discovery regarding this license, and
Durenleau could have questioned Sharma about the license, but chose not to.
(Doc. 180, p. 15.)16
Third Circuit precedent dictates that “a claim that has not been timely raised

is waived.” Spence v. City of Phila., 147 Fed. App’x 289, 291 (3d Cir. 2005). The

16 NRA continuously faults Durenleau and Badaczewski for not addressing the Wyoming license
issue in their briefing; however, this issue was not raised as support for the breach of duty of
loyalty claim until the summary judgment stage. As the parties filed simultaneous briefs, it is
understandable that Durenleau and Badaczewski did not address an argument not yet raised.
Durenleau and Badaczewski raise counter arguments in their briefing in opposition to NRA’s
motion.
Third Circuit has also previously held that a plaintiff should have moved to amend
their complaint during discovery when discovery produced evidence of an

additional claim. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 642 (3d
Cir. 1993). Here, NRA is not permitted to modify their claims on summary
judgment by changing the factual basis for one of the claims. If NRA had wanted

to base their breach of duty of loyalty claim on this factual scenario, it could have
filed a motion to amend their complaint, as it evidently was aware of this situation
as early as February 25, 2021. Accordingly, Durenleau and Badaczewski’s motion
for summary judgment will be granted on the breach of duty of loyalty claim,

Count VIII.
5. Fraud
NRA’s final claim is against Durenleau alone and alleges that she committed
fraud against NRA by moving certain accounts into her workgroup such that she

could receive a bonus based on these accounts. (Doc. 8.) Durenleau argues that
there is no evidence showing that she acted with knowledge and intent to defraud.
(Doc. 160, p. 27.) NRA responds that she knew the rules for collecting bonuses

and moved accounts into her workgroup after payment was made, meaning that she
did not perform any work on those accounts entitling her to a bonus. (Doc. 172, p.
44.)
A fraud claim in Pennsylvania law consists of six elements:
(1) (a) A misrepresentation or (b) A concealment; (2) Which is material
to the transaction at hand; (3) (a) Made with knowledge of its falsity or
recklessness as to whether it is true or false (for a misrepresentation),
or (b) Calculated to deceive (for a concealment); (4) With the intent of
misleading another into relying on it; (5) Justifiable reliance on the
misrepresentation; and (6) A resulting injury proximately caused by
such reliance.
SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 205 (3d Cir. 2022).
Additionally, “[f]raud consists of ‘anything calculated to deceive, whether by
single act or combination or by suppression of truth, or suggestion of what is false,
whether it be by direct falsehood or by innuendo, by speech or silence, word of
mouth, or look or gesture.’” Am. Indep. Ins. Co. v. Lederman, No. CIV.A. 97-4153,
2000 WL 1209371, at *14 (E.D. Pa. Aug. 25, 2000) (quoting Moser v. DeSetta,
589 A.2d 679, 682 (Pa. 1991)).
NRA argues that it was company policy that an employee “do something”
on an account in order for them to receive a bonus. It also argues that after the

account had closed, there was no more work to do, so no one could then receive a
bonus on it. Durenleau allegedly transferred accounts into her work group after
they had closed in order for her to receive a bonus off those accounts.

However, Durenleau has presented sufficient evidence that different rules
applied to her for receiving a bonus. (Doc. 161-7 p. 34; Doc. 161-19, p. 33; Doc.
162-15, p. 41.) The only evidence NRA presents to show that Durenleau knew that
moving these accounts was wrong was when she called Schaar during the audit and
asked whether she did anything wrong. (Doc. 174, ¶ 387.) The court declines to
infer from that statement that Durenleau admitted guilt, but rather, that she did not

know she was doing something wrong and needed to ask whether she had made a
mistake. Accordingly, there is no evidence showing that Durenleau acted with
knowledge of any alleged falsity in moving accounts, and she is entitled to

summary judgment as a matter of law on Count IX.
In conclusion, there are no genuine disputes of material fact, and Durenleau
and Badaczewski are entitled to judgment as a matter of law on the claims raised in
the amended complaint. Accordingly, because judgment will be entered in favor

of Durenleau and Badaczewski, NRA’s motion for summary judgment on the
claims brought in the amended complaint will be denied. The court will now
consider NRA, Kusic, and Sharma’s motion for summary judgment regarding the

counterclaims brought by Durenleau and Badaczewski.
B. Durenleau and Badaczewski’s Counterclaims Against NRA, Kusic,
and Sharma
The court now turns to NRA, Kusic, and Sharma’s motion for summary
judgment, arguing that there are no genuine disputes of material facts, and they are
entitled as a matter of law to judgment in their favor regarding the counterclaims

raised against them. (Doc. 163.) Durenleau and Badaczewski argue that there are
genuine disputes of material fact regarding their Title VII and PHRA claims.
(Doc. 173.) The court draws all reasonable inferences in favor of non-movants,
Durenleau and Badaczewski. Additionally, the court will address the Title VII and
PHRA claims together since, “in an action under Title VII and the PHRA, the

standards under the federal and state statutes are the same.” Kimes v. Univ. of
Scranton, 126 F. Supp. 3d 477, 491 (M.D. Pa. 2015).
Preliminarily, NRA, Kusic, and Sharma argue that Durenleau and

Badaczewski lack standing to bring these claims because at various times in their
respective depositions, both Durenleau and Badaczewski stated they are not
seeking money from this lawsuit, which shows they have not suffered an injury
entitling them to relief. (Doc. 163, p. 83.) As Durenleau and Badaczewski note,

these statements instead demonstrate that they are not motivated solely by money
in bringing these claims, but they are still seeking monetary damages. (Doc. 142,
p. 50.) There has been no amended pleading filed and stray statements in

contentious depositions will not deprive Durenleau and Badaczewski of standing.
The court will now address the substance of both Durenleau and Badaczewski’s
claims.
1. Continuing Violation Doctrine17

Before filing suit in federal court, a plaintiff must bring a timely charge of
discrimination before the EEOC and obtain notice of her right to sue in order to
exhaust her administrative remedies. Mandel v. M & Q Packaging Corp., 706 F.3d

17 This argument is only applicable with respect to Durenleau’s claims.
157, 163 (3d Cir. 2013). In order for a charge to be timely, a plaintiff alleging
discrimination under Title VII in Pennsylvania must bring an EEOC charge within

300 days after the alleged unlawful employment practice. See 42 U.S.C. § 2000e-
5(e)(1); Mikula v. Allegheny Cnty. of Pa., 583 F.3d 181, 183 (3d Cir. 2009);
Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). A plaintiff must

file a PHRA claim with the Pennsylvania Human Relations Commission within
180 days of the discriminatory act. 43 PA. STAT. § 959(h). Here, Durenleau dual
filed her EEOC charge on April 23, 2021; therefore, the limitations period for Title
VII began on June 27, 2020, and on October 25, 2020, for the PHRA claims. (Doc.

161-23, p. 2.)
However, the continuing violation doctrine serves as an equitable exception
to the time bar under Title VII, allowing courts to consider “discriminatory acts

that are not individually actionable . . . so long as they are linked in a pattern of
actions which continues into the applicable limitations period.” Mandel, 706 F.3d
at 165 (citing O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)).
Therefore, a plaintiff must prove that at least one discriminatory act occurred

within the limitations period and that this alleged wrong “is more than the
occurrence of isolated or sporadic acts.” Kimes, 126 F. Supp. 3d at 492. To make
this determination, courts may consider subject matter, i.e., “whether the violations

constitute the same type of discrimination,” Mandel, 706 F.3d at 166 n.2, and
frequency, i.e., “whether the acts are recurring or more in the nature of isolated
incidents.” Kimes, 126 F. Supp. 3d at 492. In considering frequency, “courts

should consider the time gap between incidents and the number of incidents that
have occurred in reaching their conclusion.” Oliver v. Clinical Pracs. of Univ. of
Pa., 921 F. Supp. 2d 434, 446 (E.D. Pa. 2013). Further, “[a]cts that are taken by

two different supervisors, acting independently, over different time periods
generally demonstrate isolated events rather than a persistent, ongoing pattern of
discrimination.” Id. at 445.
NRA, Kusic, and Sharma argue that many of Durenleau’s allegations are

outside the applicable statute of limitations and cannot be used to support her
claims of sexual harassment, and the remaining allegations are insufficient to show
severe and pervasive harassment as required by Title VII. (Id. at 90–105.)

Durenleau argues her allegations are timely under the continuing violation doctrine
because they show a pattern of harassment.
Durenleau alleges the following actions show a pattern of discriminatory
conduct at NRA, beginning in 2014: Kusic suggested they picture each other naked

when assisting Durenleau with public speaking; Kusic would comment about
Durenleau being blond, insinuating she was stupid; HR employee Tasey Leitzell,
Schaar, and Sharma joked about Durenleau sleeping with Kusic so that he would

stop bothering them; Sharma made various comments regarding another
employee’s weight; unnamed employees joked that Durenleau should be like a
former employee who Kusic was obsessed with and allegedly bought a car for;

Leitzell, Schaar, Biancha Tatum, and Kira West joked about “cleaning up the mess
after;” Kusic insinuated he wanted to go skinny dipping with Durenleau; Kusic
asked Durenleau “how well does your man have it at home;” Kusic swiped a

cheese curl over Durenleau’s lips and gave her a funny look; it was rumored in the
office that a malware incident was due to Kusic watching porn in his office;
Sharma discussed with Durenleau how another employee wanted to sleep with
him; Sharma stated in Durenleau’s presence that he wanted to sleep with another

employee; after Jamie Badaczewski’s employment interview, Sharma and the HR
director told Durenleau that if she and Badaczewski had sex, they should film it
and send it to the two men; on unspecified dates, HR employee Tasey Leitzell used

to make derogatory comments regarding the collection employees; at various times
throughout her employment, Durenleau and Sharma would give each other neck
rubs; on an unspecified date, Sharma told Durenleau another employee had an
issue with her clothes, relaying the employee said Durenleau was a “whore” and

that her clothes were too tight and short; on an unspecified date, Sharma made
comments about another employee’s breasts; and Sharma would greet Durenleau
every day with a hug or arm around the shoulder. Finally, Durenleau argues this
pattern of sexual harassment culminated with Sharma slapping her on November
20, 2020.

Here, Durenleau has provided evidence that one act occurred during the
limitations period: the November 2020 slap by Sharma. Next, she has shown an
ongoing practice of discrimination. Although not all overtly sexual, Durenleau

alleges many inappropriate sexual and sex-based comments as well as multiple
instances of inappropriate touching which could be interpreted by a reasonable jury
to show a pattern of sexual harassment by Kusic and Sharma. The incidents
mostly involve Durenleau’s only two supervisors at NRA: Kusic and Sharma.

While the events were perpetrated by two different supervisors at two distinct time
periods, a reasonable jury could still connect the actions of these supervisors as one
larger pattern because both men were in upper management at NRA and as such,

were responsible for fostering an environment where this type of behavior was
condoned. Events that do not involve either Kusic or Sharma, such as Ms.
Leitzell’s general comments about the collection floor, will be excluded from
consideration. Additionally, Durenleau’s gender could be a substantially

motivating factor for the incidents because many of the comments dealt with her
sex life. A reasonable jury could find that Kusic and Sharma would not have
treated a male employee the same way. In total, the incidents were also fairly

frequent, with a total of 15 incidents over 6.5 years and some occurring on a daily
basis. Accordingly, the court will consider the events involving either Kusic or
Sharma in analyzing whether NRA, Kusic, and Sharma are entitled to summary

judgment on the hostile work environment claim.
2. Durenleau and Badaczewski’s Hostile Work Environment
Claims
i. Durenleau’s Hostile Work Environment Claim
Title VII makes it “an unlawful employment practice for an employer . . . to
discriminate against an individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Sexual harassment is
discrimination based on one’s sex. Meritor Savings Bank, FSB v. Vinson, 477 U.S
57, 65 (1986). Sexual misconduct, such as “[u]nwelcome sexual advances,

requests for sexual favors, and other verbal or physical conduct of a sexual
nature . . .” constitutes sexual harassment “whether or not it is directly linked to the
grant or denial of an economic quid pro quo, where ‘such conduct has the purpose

or effect of unreasonably interfering with an individual’s work performance or
creating an intimidating, hostile, or offensive working environment.’” Id. (quoting
29 CFR § 16041.11(a)(3)).
In order to state a claim for a hostile work environment, an employee must

show “(1) the employee suffered intentional discrimination because of [her] sex,
(2) the discrimination was pervasive and regular, (3) the discrimination
detrimentally affected the [employee], (4) the discrimination would detrimentally
affect a reasonable person of the same sex in that position, and (5) the existence of

respondeat superior liability.” Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir.
2007).
First, the “[o]ffensive conduct need not necessarily include obvious sexual

overtones in order to constitute unlawful harassment or discrimination.” Hargrave
v. Cnty. of Atl., 262 F. Supp. 2d 393, 412 (D.N.J. 2003) (citing Andrews v. City of
Phila., 895 F.2d 1469, 1485 (3d Cir. 1990)). Instead, only “a showing that
[plaintiff’s gender was] a substantial factor in the harassment, and that if the

plaintiff had been [male] she would not have been treated in the same manner[]” is
required. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir.
1996).

Next, the workplace at issue must be “permeated with discriminatory
intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter
the conditions of [her] employment and create an abusive working environment.”
Kimes, 126 F. Supp. 3d at 498. In determining how severe or pervasive the

offensive conduct is, the court must look at the totality of the circumstances,
including the “frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993).

Importantly, “[h]ostile environment claims require both an objective and a
subjective showing; the environment must have been one that not only a
reasonable person would find hostile and abusive, but which the actual Plaintiff in

fact found to be hostile and abusive.” Pittman v. Cont’l Airlines, Inc., 35 F. Supp.
2d 434, 441 (E.D. Pa. 1999). “A discriminatory abusive work environment, even
one that does not seriously affect employees’ psychological well-being, can and
often will detract from employees’ job performance, discourage employees from

remaining on the job, or keep them from advancing in their careers.” Harris, 510
U.S. at 22.
Here, a reasonable jury could find that Durenleau was discriminated against

on the basis of her sex. Many of the comments made were directly sexual in
nature. The remaining comments were sufficiently related to her gender, such as
Kusic referring to her as a blonde or Sharma’s comments regarding another
employee’s weight, that a reasonable jury could find that they would not have been

made if Durenleau was a man. Moreover, some of the comments and the slap,
while not overtly sexual, were done in a “paternalistic” manner, which brings a
level of intimidation that a jury could find would not be used with a man.
Accordingly, a reasonable jury could find that Durenleau was discriminated against
based on her sex.

Next, a reasonable jury could find that the conduct was severe and
pervasive. Durenleau has alleged and substantiated approximately fifteen incidents
over a span of six and a half years. A fair portion of the conduct was in the form of

mere utterances or jokes in the office, however, Durenleau does allege and provide
evidence that she experienced unwanted touchings in the daily hugs by Sharma,
neck rubs, and the slap across the face. There were no overt sexual overtures, but
there were several sexual comments directed at her or made about others in her

presence. Accordingly, there is a disputed issue of material fact as to how severe
or pervasive the conduct was.
We also must consider whether the workplace was hostile and abusive from

both an objective and subjective perspective. Here, Durenleau specifically testified
that going to work made her uncomfortable and that she had a panic attack in 2018
due to her situation at work. (Doc. 161-8, p. 82.) She also spoke with her
therapist about suffering physical and sexual abuse at work. (Doc. 155-1, p. 12.)

Durenleau also references the abuse she experienced at NRA as a reason for
leaving in her resignation letter, showing that the abusive environment at NRA
discouraged her from remaining in employment. This is sufficient to show she

subjectively viewed her workplace as hostile and abusive.
Additionally, a reasonable person in the same situation would also find the
environment at NRA hostile and abusive. The evidence of record shows an office

environment where supervisors freely made inappropriate or sexually charged
comments to their staff with no accountability. A reasonable jury could find this
environment hostile and abusive.

The final element of a hostile work environment claim is vicarious liability.
“An employer is subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee.” Faragher v. City of Boca

Raton, 524 U.S. 775, 807 (1998). When there is no employment action taken,
employers may avail themselves of an affirmative defense, where they must show
they “exercised reasonable care to prevent and correct promptly any sexually

harassing behavior” and “the plaintiff employee unreasonably failed to take
advantage of any preventative or corrective opportunities provided by the
employer or to avoid harm otherwise.” Id. This defense is “unavailable when the
supervisor in question is the employer’s proxy or alter ego.” O’Brien v. Middle

East Forum, 57 F.4th 110, 119 (3d Cir. 2023.) A supervisor is an employer’s
“proxy” when they are “high enough in the management hierarchy that his actions
‘speak’ for the employer . . . he may be considered the employer’s alter ego.” Id.

at 121.
NRA, Kusic, and Sharma raise a Faragher/Ellerth defense by arguing that
Durenleau did not utilize the sexual harassment complaint system NRA had in

place. (Doc. 163, pp. 105–10.) Durenleau argues that the Faragher/Ellerth
defense is inapplicable in this case because the two people she is alleging sexually
harassed her are proxies for NRA. (Doc. 176, p. 98.)

Here, there was no employment action taken against Durenleau because she
resigned. It does not appear that Kusic was ever Durenleau’s direct supervisor,
although at all times he was the CEO. Sharma was either her immediate supervisor
or a successively higher supervisor and also the COO. (Doc. 174, ¶ 411.) Kusic

and Sharma are proxies of NRA because they are sufficiently high in the
management structure that their actions could be said to speak for NRA.
Therefore, the Faragher/Ellerth defense is unavailable, and NRA is subject to

vicarious liability. In conclusion, there are disputed issues of material fact such
that a jury must decide these questions. NRA, Kusic, and Sharma’s motion for
summary judgment as to Counts I and IV of Durenleau’s counterclaims will be
denied.

ii. Badaczewski’s Hostile Work Environment Claim
NRA, and Kusic only raise the Fargher/Ellerth defense arguing that
Badaczewski did not utilize the sexual harassment complaint system NRA had in
place. (Doc. 163, p. 131.)18 As noted above, the Faragher/Ellerth defense is not
available to employer proxies. As Kusic was Badaczewski’s direct supervisor and

CEO, a reasonable jury could find that he was a proxy of NRA. Therefore, NRA is
subject to vicarious liability for Badaczewski’s hostile work environment count,
Counts I and IV, and Kusic’s motion for summary judgment on Badaczewski’s

hostile work environment claim will be denied.
3. Quid Pro Quo Sexual Harassment
The Third Circuit has adopted the test set out by 29 C.F.R. § 1604.11(a)(1)
and (2) for the elements of a quid pro quo sexual harassment claim, which

provides:
Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature constitute sexual
harassment when (1) submission to such conduct is made either
explicitly or implicitly a term or condition of an individual’s
employment [or] (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions affecting such
individual . . . .
29 C.F.R. § 1605.11(a)(1), (2).
An employee does not need to be threatened with or experience economic or
tangible discrimination, but the “sexual advances must be sufficiently severe as to

18 The court notes that there is no evidence in the voluminous record of when Badaczewski filed
her EEOC charge. There is evidence that Badaczewski received a right to sue letter on June 29,
2021. (Doc. 24-4, p. 2.) However, NRA does not dispute the timeliness or even the substance of
Badaczewski’s hostile work environment claim. Accordingly, that count will proceed past
summary judgment.
alter the employee’s ‘compensation, terms, conditions or privileges of
employment,’ or to ‘deprive or tend to deprive [him or her] of employment

opportunities or otherwise adversely affect his [or her] status as an employee.’”
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997) (citing 42
U.S.C. §§ 2000e-2(a)(1), (2)). The employee must establish a causal link showing

that their “response was in fact used thereafter as a basis for a decision affecting
his or her compensation.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 282
(3d Cir. 2000). In considering the causal connection, the court “should not be
constrained; rather, the court can consider circumstantial evidence and draw

inferences in favor of the non-moving party in reaching this determination on
summary judgment.” Id. at 283.
i. Durenleau’s Quid Pro Quo Sexual Harassment Claim
The substance of Durenleau’s quid pro quo sexual harassment claim is

joking between Tasey Leitzell, Schaar, and Sharma that Durenleau should sleep
with Kusic so that he would leave them alone. NRA, Kusic, and Sharma argue
Durenleau was not subject to quid pro quo sexual harassment because the sexual

harassment she experienced was actually a running joke in the office and no
employment benefits were attached to it. (Doc. 163, p. 111.) Durenleau argues
that because she did not report this incident or others, she continued to receive
promotions. (Doc. 176, p. 41.) However, once she reported the incident where
Sharma slapped her, she was “forced out of her employment.” (Id.)

Here, there is no evidence showing a causal connection between the
“joking” that Durenleau states as the basis for her claim and any later employment
decisions. Even though different inferences could be drawn about the fall out from

Durenleau reporting Sharma’s slap, that still does not provide a connection
between any rejection or submission to these “jokes” and employment decisions
made by NRA. Therefore, summary judgment is granted in favor of NRA, Kusic,
and Sharma on Counts II and V of Durenleau’s counterclaims.

ii. Badaczewski’s Quid Pro Quo Sexual Harassment Claim
Badaczewski’s quid pro quo sexual harassment claim is based on the trip to
buy candy for the office where Kusic bought her candy, inquired if other guys buy
her as much stuff as he did, and then she was fired the next day. NRA and Kusic

argue Badaczewski cannot support her quid pro quo sexual harassment claims
because there is no evidence showing that any sexual advances were tied to a
condition of employment. (Doc. 163, p. 135.)

Here, the evidence supporting Badaczewski’s claims of Kusic making sexual
advances towards her consists of statements, but Badaczewski has provided no
further details regarding any specific times where these statements occurred. (Doc.
174, ¶ 829.) Additionally, Badaczewski points to the candy shopping incident
where she was fired the next day. However, on that trip, there is no evidence that
Badaczewski rebuffed any advance. More specifically, there is no evidence of her

response to his questions about other men buying her as many things as he does.
There is also sufficient undisputed evidence to show that the decision to fire her
the next day was made contemporaneously with NRA discovering that

Badaczewski was the one who sent Durenleau the password spreadsheet. (Doc.
174, pp. 300–08.) Considering all of the evidence, Badaczewski cannot prove the
causation element of her quid pro quo sexual harassment claim when there is clear
evidence of a legitimate reason for her termination. Thus, summary judgment will

be entered in favor of NRA and Kusic on Counts II and V of Badaczewski’s
counterclaims.
4. Retaliation Claims
To state a claim for retaliation under Title VII, a plaintiff must allege that:

“(1) she engaged in activity protected by Title VII; (2) the employer took an
adverse employment action against her; and (3) there was a causal connection
between her participation in the protected activity and the adverse employment

action.” Moore v. City of Phila., 461 F.3d 331, 340–41 (3d Cir. 2006) (citing
Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir.1995)).
Protected activity ranges from formal charges of discrimination to “informal
protests of discriminatory employment practices, including making complaints to
management, writing critical letters to customers, protesting against discrimination
by industry or society in general, and expressing support of co-workers who have

filed charges.” Mufti v. Aarsand & Co., Inc., 667 F. Supp. 2d 535, 552 (W.D. Pa.
2009). To determine whether an employee has engaged in protected activity, “we
look to the message . . . conveyed [by a plaintiff’s conduct] rather than the means

of conveyance. The complaint must allege that the opposition was to
discrimination based on a protected category.” Daniels v. Sch. Dist. of Phila., 776
F.3d 181, 194 (3d Cir. 2015) (citations omitted). In undertaking the protected
activity, “the employee must hold an objectively reasonable belief, in good faith,

that the activity they oppose is unlawful under Title VII.” Moore, 461 F.3d at 341.
The retaliatory action taken against the employee must be “‘materially
adverse’ in that [it] may well have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Id. (quoting Robinson, 120 F.3d at 1300).
Additionally, “a transfer to a less desirable position or an unsatisfactory job
evaluation may constitute the requisite adverse employment action as to the terms,
conditions, and privileges of employment, but modest changes in duties or working

conditions and actions that simply make an employee unhappy but not producing a
material disadvantage do not.” U.S. Equal Emp. Opportunity Comm’n v. Bob
Evans Farms, LLC, 275 F. Supp. 3d 635, 659 (W.D. Pa. 2017).
Finally, the causal connection element looks to the reason for the
harassment, and “identif[ies] what harassment, if any, a reasonable jury could link

to a retaliatory animus.” Id. (quoting Jensen v. Potter, 435 F.3d 44, 449 n.2 (3d
Cir. 2006) (overruled in part on other grounds by Burlington N. & Santa Fe Ry.
Co v. White, 548 U.S. 53 (2006)). Temporal proximity can be used to show a

causal connection if it is unusually suggestive. Daniels, 776 F.3d at 196. Absent
unusually suggestive temporal proximity, “we consider the circumstances as a
whole, including any intervening antagonism by the employer, inconsistencies in
the reasons the employer gives for its adverse action, and any other evidence

suggesting that the employer had a retaliatory animus when taking the adverse
action.” Id.
i. Durenleau’s Retaliation Claim
Durenleau’s retaliation claim includes three types of retaliatory acts. First,

Durenleau alleges she was retaliated against while still working at NRA by having
her parking space taken away, no longer being permitted to arrive to work early,
being the only manager without a laptop, being removed from the e-team, being

the subject of false fraud allegations, being forced to work while on COVID leave,
and eventually having a baseless corrective action report which threatened
termination on the next infraction. (Doc. 142, pp. 41–45.) Second, Durenleau
alleges she was constructively discharged in retaliation for her report. (Id.) Third,
Durenleau alleges she was retaliated against after her employment ended by the
filing of the instant lawsuit and NRA threatening discrimination charges. (Id.) On

the other hand, NRA argues that Durenleau was not retaliated against because her
report of the slap incident was not a protected activity, many of the instances of
retaliation she recounts had legitimate reasons, she voluntarily resigned, and her

attorney’s demand letter was not a protected activity. (Id. at 114–30.) The court
will address each type of retaliatory conduct in turn.
Turning to the conduct while Durenleau was still employed at NRA,
Durenleau’s emailed statement to in house counsel regarding the slap incident is

protected activity because it is a complaint to management regarding Sharma’s
actions which could be considered sexual harassment. Durenleau does not call the
incident “sexual harassment,” but it is clear that she believed the slap was

inappropriate and needed to be reported. Further, Durenleau made this statement
in good faith and believed the slap was unlawful under Title VII because in the
email she stated, “I want this on file just in case I lose my job, get demoted or have
my pay reduced[,]” and she immediately reported the incident. (Doc. 162-1, p. 6.)

Durenleau’s actions after the slap show that she knew this incident was something
out of the ordinary and that she needed to get NRA’s legal counsel involved.
Drawing all reasonable inferences in favor of Durenleau, a reasonable jury could
find that she was reporting an act of sexual harassment, making this email a
protected activity.

Next, having her parking space taken away, not being allowed to go to work
early, and being denied a work laptop, taken in totality with Daube’s comment that
“once you stiff him [Sharma], you’re done” and the corrective action report for the

allegedly fraudulent transfer of accounts wherein she was warned that her next
violation would result in termination of her employment, is an adverse
employment action which would dissuade a reasonable employee from filing a
formal charge of discrimination. These actions, which marked a change in how

she had operated at NRA, all occurred after she reported the November 2020 slap.
Drawing all reasonable inferences in favor of Durenleau, a reasonable jury could
find that these changes collectively rise to the level of a materially adverse

employment action.
NRA provides non-discriminatory reasons for these decisions, but Durenleau
alleges that these reasons are merely pretext because of the comment “once you
stiff [Sharma], you’re done.” Further, Durenleau points to past employees who

complained about the working environment of NRA and were also threatened with
a lawsuit. This is sufficient to create a disputed issue of material fact regarding
whether Durenleau suffered an adverse employment action.
Finally, turning to causation, Durenleau argues that all of the more minor
retaliatory actions, as well as the corrective action report, coupled with Daube’s

comments show retaliatory animus. Daube knew that Durenleau had made a
complaint about Sharma slapping her because she sat in on the investigation into
the incident. (Doc. 161-16, p. 27.) After this investigation, there was a change in

how NRA treated Durenleau. Some implicit facets of her employment situation,
such as parking near the front and arriving at work early, were taken away. There
was a corrective action report that was issued approximately two months after
Durenleau reported the slap, the subject of which was allegedly fraudulent account

transfers that Durenleau did not realize were against the rules. The timing of these
changes is sufficient to create a dispute of material fact regarding whether they
were taken with retaliatory animus. Therefore, NRA, Kusic, and Sharma’s motion

for summary judgment will be denied regarding Durenleau’s retaliation claim
while she was still employed at NRA.
Turning to Durenleau’s constructive discharge claim, an employee must
establish “the employer knowingly permitted conditions of discrimination in

employment so intolerable that a reasonable person subject to them would resign.”
Aman, 85 F.3d at 1084. In making this determination, the court employs an
“objective standard, requiring no more than a finding that the conduct complained

of would have the foreseeable result that working conditions would be so
unpleasant or difficult that a reasonable person in the employee’s shoes would
resign.” Goss v. Exxon Off. Sys. Co., 747 F.2d 885, 887–88 (3d Cir. 1984). The

court must consider, “whether the employee was threatened with discharge,
encouraged to resign, demoted, subject to reduced pay or benefits, involuntarily
transferred to a less desirable position, subject to altered job responsibilities, or

given unsatisfactory job evaluations.” Colwell v. Rite Aid Corp., 602 F.3d 495,
503 (3d Cir. 2010). Further, “[a] hostile work environment ‘will not always
support a finding of constructive discharge.’” Spencer v. Wal-Mart Stores, Inc.,
469 F.3d 311, 317 (3d Cir. 2006) (quoting Marrero v. Goya of P.R., Inc., 304 F.3d

7, 28 (1st Cir. 2002)). There must be a greater showing of severity or
pervasiveness than in a hostile work environment claim. Id.
Here, Durenleau was threatened with discharge through the corrective action

report that provided her next violation would result in termination. Durenleau has
also provided sufficient facts to create a dispute regarding whether she suffered a
hostile work environment, as previously discussed. Additionally, as discussed
above, she also showed a crackdown on her behavior after reporting the slap

incident with Sharma. Similar to Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1084 (3d Cir. 1996), Durenleau has established that she faced a pattern of
discrimination for several years and then faced an uptick in negative consequences

after she reported the clap incident. A reasonable employee could feel compelled
to quit when confronting these circumstances. Accordingly, NRA, Sharma, and
Kusic’s motion for summary judgment on Durenleau’s constructive discharge

retaliation claim is denied.
Finally, turning to Durenleau’s retaliation claims post-resignation, “a
plaintiff must show that [s]he engaged in protected activity, that [her] former

employer had influence over a subsequent employment-related decision, and that
[her] former employer made a retaliatory use of that influence to the detriment of
the plaintiff’s employment opportunities.” Boandl v. Geithner, 752 F. Supp. 2d
540, 567 (E.D. Pa. 2010) (citing Charlton v. Paramus Bd. of Educ., 25 F.3d 194,

200–201 (3d Cir. 1994)).
NRA argues that her criminal complaint and her attorney’s notice of claims
was not a protected activity because it did not refer to the slap incident as “sexual

harassment.” (Doc. 163, p. 126–27.) However, as we held above regarding
Durenleau’s email, the notice references the slap incident, which could be sexual
harassment, as it is unlikely that Sharma would slap a male employee. Next,
Durenleau provides evidence that Kusic emailed her supervisor at her new job,

pointing them towards evidence in this case showing that Durenleau had her
boyfriend, a police officer, check for information on this individual. (Doc. 173-2,
p. 2.) This email was sent the day after she was terminated by her subsequent

employer. (Doc. 161-8, p. 19.) There is no other evidence in the record regarding
why she was terminated from her subsequent position besides Durenleau’s
speculation that someone contacted her new employer prior to her termination.

Durenleau’s speculation is not sufficient to establish a causal connection.
Therefore, summary judgment is granted in favor of NRA, Kusic, and Sharma on
Durenleau’s post-resignation retaliation claim.

In conclusion, NRA, Kusic, and Sharma’s motion for summary judgment is
granted regarding Durenleau’s post-resignation retaliation claim but denied
regarding Durenleau’s retaliation claim while at NRA and her constructive
discharge claim.

ii. Badaczewski’s Retaliation Claim
NRA argues that Badaczewski can provide no evidence of a causal
connection for her retaliation claim where she was terminated for legitimate
business reasons. (Doc. 163, p. 137.) Badaczewski argues that her termination

occurred after Badaczewski made a report to HR regarding Kusic’s intimidating
conduct with her. (Doc. 173, p. 53.)
Here, Badaczewski’s email to HR consisted of complaints that Kusic made

“rude condescending comments towards me about my intelligence, work ethic, and
ability to grasp something.” (Doc. 161-13, p. 24.) This email is entirely regarding
her ability to perform her job and makes no reference to any comments that could
be related to her sex in anyway. However, in a subsequent meeting with HR
regarding the email, she told the HR director and Lisa Daube about Kusic
“constantly talk[ing] about me being blond and having big boobs.” (Doc. 174,

¶ 866.) These complaints are sufficiently relating to her sex that reporting them in
the meeting consists of a protected activity. However, the act of terminating her is
not sufficiently causally connected to these reports to constitute retaliatory animus.

Initially, she sent the email and had the meeting in January and she was not
terminated until March. Further, her termination is temporally very close to NRA
discovering that she had been the one who logged into Durenleau’s computer and
sent her the spreadsheet. Therefore, Badaczewski cannot prove she was retaliated

against for her complaints to HR about Kusic’s potential sexual harassment.
Summary judgment will be granted in favor of NRA and Kusic on Counts III and
VI of Badaczewski’s counterclaims.

5. PHRA Claims against Kusic and Sharma Individually
i. Durenleau’s Individual Claims
Kusic and Sharma argue that Durenleau’s individual claims against them fail
because they are untimely, and she fails to show a PHRA violation. (Doc. 163,

p. 130.) First, Durenleau’s claims are timely because the continuing violation
doctrine applies to PHRA claims as well as Title VII claims. Lesko v. Clark
Publisher Svcs., 904 F. Supp. 415, 419 (M.D. Pa. 1995). Here, Durenleau filed her
EEOC and PHRA charge within 180 days after the November 20, 2020, slap.
(Doc. 161-23.) Since the court held that the continuing violation doctrine applies
to the Title VII claim, it applies to the individual PHRA claims for the same

reasons.
Second, the PHRA establishes liability for employers for unlawful
employment practices, but also provides that it is unlawful for “any person,

employer, employment agency, labor organization or employe[e], to aid, abet,
incite, compel or coerce the doing of any act declared by this section to be an
unlawful discriminatory practice . . . .” 43 PA. STAT. § 955(a), (e). Further, “in the
appropriate factual scenario, an individual supervisory employee can be held liable

under an aiding and abetting/accomplice liability theory . . . for his own direct acts
of discrimination or for his failure to take action to prevent further discrimination
by an employee under supervision.” Davis v. Levy, Angstreich, Finney, Baldante,

Rubenstein & Coren P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa. 1998) (citing Dici v.
Commonwealth of Pa., 91 F.3d 542, 552 (3d Cir. 1996)). The appropriate
circumstances to find a supervisor liable for his own discrimination is when they
“engage[] in discriminatory conduct while acting in the scope of his employment”

because they “share[] the intent and purpose of the employer and may [properly]
be held liable for aiding and abetting the employer in its unlawful conduct.”
Glickstein v. Neshaminy Sch. Dist., No. 96–6236, 1997 WL 660636, at *12 (E.D.

Pa. Oct. 22, 1997).
Here, the aiding and abetting count against Sharma can proceed because
Sharma was Durenleau’s supervisor at the time of the alleged harassment and the

harassment occurred while at work, in the scope of their supervisor-direct report
relationship. Further, the individual liability claim can go forward against Kusic
because he is the CEO of NRA and can be said to “share the intent and purpose” of

the employer. Accordingly, NRA, Kusic, and Sharma’s motion for summary
judgment will be denied as to Count IV of Durenleau’s counterclaims.
ii. Badaczewski’s individual claims
Kusic argues Badaczewski’s individual claims against Kusic fail because

she fails to show a PHRA violation. (Id. at 144.) For the same reasons that
Durenleau’s claims against her supervisor will go forward, so will Badaczewski’s.
Kusic’s motion for summary judgment will be denied as to Count IV of
Badaczewski’s counterclaims.

CONCLUSION
Durenleau and Badaczewski’s motion for summary judgment regarding
NRA’s claims against them is granted. NRA, Kusic, and Sharma’s motion for

summary judgment on Durenleau and Badaczewski’s counterclaims will be
granted in part and denied in part. An order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Dated: December 19, 2023 Middle District of Pennsylvania

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414103. Public record. Not legal advice.