The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JANE DOE, et al., : Civ. No. 3:21-CV-477
:
Plaintiffs, :
:
v. :
: (Magistrate Judge Bloom)
SCHUYLKILL COUNTY :
COURTHOUSE, et al., :
:
Defendants. :
MEMORANDUM OPINION
I. Introduction
This is a civil action brought by four Jane Doe plaintiffs against
Schuylkill County and several individual defendants. The claims in this
case involve allegations of sexual abuse and harassment of the Doe
plaintiffs by former County Commissioner, George Halcovage, over a
period of several years while the plaintiffs were employed by the County.
The plaintiffs assert that the County, as well as the other individual
defendants, were aware of the ongoing harassment of the plaintiffs, and
rather than intervene, they retaliated against the plaintiffs for reporting
the abuse and harassment.
Pending before the court is a motion for summary judgment filed by
one of the defendants, Doreen Kutzler.1 (Doc. 240). In this motion,
Kutzler challenges the plaintiffs’ retaliation and aiding and abetting
claims under the Pennsylvania Human Relations Act (“PHRA”), their
Equal Protection claims, and their First Amendment retaliation claims,
arguing that the plaintiffs have not set forth sufficient factual support
and evidence to support these claims against her. The motion is fully
briefed and ripe for resolution. (Docs. 256, 273, 302). After consideration,
the motion will be denied.
II. Background2
The Doe plaintiffs, four women who were formerly or are currently
employed by Schuylkill County, filed this lawsuit in March of 2021. The
amended complaint names the County, Halcovage, Glenn Roth, Gary
Bender, Heidi Zula, and Doreen Kutzler as defendants. As to Defendant
Kutzler, the plaintiffs assert claims of retaliation and aiding and abetting
1 The individual defendants have all filed separate motions for summary
judgment (Docs. 236, 238, 239, 243), which will be addressed in separate
Memorandum Opinions.
2 The factual background of this Memorandum Opinion is taken from the
parties’ submissions to the extent those submissions are consistent with
the evidence in the record. (Docs. 256, 258, 273, 287-83, 302).
discrimination under the Pennsylvania Human Relations Act (“PHRA”)
(Counts VI, VII); discrimination and creation of a hostile work
environment under the Fourteenth Amendment’s Equal Protection
clause (Counts VIII, IX); and retaliation in violation of the First
Amendment. (Count XIII).3
A. Allegations of Halcovage’s Sexual Abuse and Harassment
Prior to May of 20204
Jane Doe 1 began working for Schuylkill County in 2014 and has
alleged that Defendant Halcovage subjected her to sexual abuse and
harassment since the inception of her employment. This abuse and
harassment included unannounced and uninvited visits to her home,
continual calls and text messages, visits to the tax offices to disrupt her
workday, and eventually, requests for oral sex and sexual intercourse.
Doe 1 has asserted that she felt compelled to submit to Halcovage’s
demands for fear of losing her employment with the County. Jane Doe 2,
3 Count X was misnumbered in the amended complaint as Count XIII.
Therefore, to avoid confusion, we will refer to this count as Count XIII.
4 For the sake of brevity, we limit this discussion to the factual allegations
and supporting evidence involving Defendant Kutzler. It is undisputed
that Kutzler did not begin her temporary, interim employment with the
County until September of 2020, and it was at this point that she was
informed of the allegations of abuse and harassment by Halcovage and
others.
who worked at the County since late 2014, has also alleged that she was
subjected to unannounced visits to her home by Halcovage, continual
calls and text messages, and that Halcovage propositioned her for sex on
at least one occasion.
Jane Does 3 and 4 have asserted that since their employment at the
County and since Halcovage was elected as a county commissioner, he
regularly visited their offices and subjected them and other female
employees to sexual harassment. This harassment included jokes that
were sexual in nature and starting rumors about himself having
relationships with women in the office. The plaintiffs also assert that
Halcovage regularly made derogatory remarks about women, including
their supervisor, Virginia Murray. They also contend that some of the
defendants, including Bender and Roth, were aware of Halcovage’s
conduct but did nothing to stop the behavior.
B. The Plaintiffs’ Reports Regarding Halcovage’s Harassment
In March of 2020, Doe 1 and Doe 2, among other employees, were
furloughed due to the COVID-19 pandemic. In May of 2020, after she had
spent some time away from the courthouse and after she had been
working under a new supervisor with whom she felt comfortable, Doe 1
disclosed the ongoing sexual abuse and harassment by Halcovage to her
direct supervisor, Doe 3. Doe 3 then reported Doe 1’s allegations to Debra
Twigg, the Human Resources Director at the time, and Bender, who was
the County Administrator and Doe 3 and 4’s direct supervisor.
Ms. Twigg undertook an investigation into Doe 1’s allegations. The
investigation included allegations by the other Doe plaintiffs regarding
Halcovage’s harassment. Ms. Twigg compiled a report after interviewing
the Doe plaintiffs, Halcovage, and other witnesses. The report was sent
to Defendants Roth and Bender, as well as the other county
commissioners, Gary Hess and Barron “Boots” Hetherington. The report
indicated that Doe 1 revealed she had been in a sexual relationship with
Halcovage for seven years, but that it was not a consensual relationship,
as she felt that she had to submit to his advances to keep her job.
Halcovage admitted to being in a sexual relationship with Doe 1 but
stated that it was consensual. Halcovage further admitted to the incident
in which he called Doe 1 to the courthouse on a Saturday, took her into
an office, and unzipped his pants implying she should perform oral sex
on him. He denied some of Doe 1’s other allegations of sexual abuse.
Regarding Doe 2’s allegations, Halcovage admitted to regularly
texting Doe 2 and showing up at her home uninvited. He further
admitted to showing up at Doe 2’s parents’ home on the day Doe 1
reported Halcovage’s abuse and after Doe 2 did not answer his calls.
However, he denied that he ever propositioned Doe 2 for sex or insinuated
that they should have a sexual relationship.
As to Doe 3’s allegations, Halcovage admitted to spending time in
the tax offices but denied that he would turn conversations into a sexual
nature. Defendant Roth corroborated some of the allegations made
against Halcovage, including some of the sexual jokes that Halcovage told
in the office, which Roth stated he did not appreciate. Roth further
conceded that Halcovage would also stop by his office toward the end of
the day, at which time Roth felt obligated to stay and talk with him. Roth
also corroborated Doe 3’s allegations regarding statements made by
Halcovage concerning her “loyalty” to him.
Halcovage denied ever making comments about Doe 4 eating freeze
pops or interrupting their argument to suggest they have sex. Halcovage
also denied that he told Does 3 and 4 to change their political parties if
they wanted to be promoted. However, Roth indicated that Doe 3
informed him about the comments Halcovage made to Doe 4 about eating
freeze pops and being “on her knees.”
Ultimately, Ms. Twigg’s report concluded that Halcovage had
violated the County’s Sexual Harassment Policy, the Conduct and
Disciplinary Action Policy, and the Physical and Verbal Abuse Policy.
The report further stated that because Halcovage was an elected official
and was not subject to removal by the County Administration, it was
recommended that he resign his position as commissioner. Additionally,
if Halcovage insisted on remaining in his position, the report
recommended that the County continue with the steps taken since the
investigation for the safety of the complainants, which included moving
Doe 3 and Doe 4’s parking spots, permitting Doe 1 and Doe 2 to work
from home, and prohibiting Halcovage from having any contact with the
Tax Claim and Tax Assessment offices.
Following the results of Ms. Twigg’s investigation, Bender wrote a
letter to the other two county commissioners, Hess and Hetherington.
This letter indicated that the investigation substantiated some of Doe 1’s
allegations, including the facts that Halcovage was engaged in a sexual
relationship with Doe 1 for several years, that he engaged in
inappropriate sexual behavior at the courthouse on one occasion, and
that Halcovage knew Doe 1 struggled with alcoholism and continued to
provide her with alcohol. The letter further indicated that these actions,
if taken by a County employee, would subject the employee to discipline
up to and likely including termination, but that since Holcavage was an
elected official, the County Administration had no authority to remove
him from his position.
C. The Aftermath of the Plaintiffs’ Reporting
Following the plaintiffs’ reports to HR and Ms. Twigg’s findings, the
Doe plaintiffs contend that they were subjected to significant backlash
and retaliation at the hands of the defendants. Thus, when Does 1 and 2
returned from furlough, they were initially permitted to work from home
to limit any interactions they might have with Halcovage. This was put
into place because Halcovage not only refused to resign his position as
commissioner, but refused to work from home, despite requests to do so
from several County employees, including Bender and Commissioner
Hess. Additionally, restrictions were initially placed on Halcovage’s
access to County buildings by Sheriff Joseph Groody, such as
requirements that he be searched by security and escorted throughout
the buildings. Further, the County moved Doe 3 and Doe 4’s parking
spots to a different lot than Halcovage’s assigned parking spot, so that
they could limit their interactions with him. Bender voiced his opposition
to some of these measures, indicating that he did not think the Sheriff,
or the County had the authority to limit Halcovage’s access to the
courthouse since he was an elected official.
In July of 2020, there was an incident in which Halcovage was seen
climbing a steep embankment from the lower parking lot to get to the
upper lot where Does 3 and 4 parked. Does 3 and 4 were seated in a car
in the parking lot talking to their attorney on the phone at the time.
When they returned to their offices, a colleague mentioned that he had
seen Halcovage coming up into the parking lot and toward the car where
Does 3 and 4 were seated. Several individuals deposed in this matter
stated that the embankment is steep, and that there are other, safer ways
to get from the lower lot to the upper lot. For his part, Halcovage stated
that he went up the embankment because he needed access to the
courthouse, and no one from the sheriff’s office had answered his calls to
escort him into the building. Another incident occurred in August, after
Does 3 and 4 conducted an assessment appeal hearing in the
commissioners’ boardroom. According to Doe 3, she had scheduled the
room for a hearing for two hours. After the hearing had concluded but
within the timeframe she had reserved the room, Doe 3 went back into
the room because she had forgotten her laptop. Halcovage was in the
boardroom, even though he was not supposed to have contact with her.
According to the plaintiffs, Bender was made aware of these issues and
yet refused to provide the plaintiffs with accommodations for their safety.
Regarding Does 1 and 2, while they were initially permitted to work
from home, they were subjected to several obstacles that did not allow
them to perform their work. Doe 3, as their supervisor, asked Bender to
supply Does 1 and 2 with the office supplies they needed to work from
home. However, by October of 2020, they still did not have the necessary
supplies to complete their work. Thus, the plaintiffs emailed the interim
HR Director, Defendant Doreen Kutzler, and asked her how to get the
necessary supplies. Kutzler eventually was able to order new laptop
computers for Does 1 and 2. However, in her deposition, Kutzler stated
that despite her efforts at obtaining equipment for the plaintiffs, she did
not believe that what was supplied by the County was sufficient for Does
1 and 2 to complete their work from home.
It was around this time in October or November of 2020 that an
issue was brought to light regarding delinquent reports to the State Tax
Equalization Board (“STEB”), which was a main part of Doe 1’s job.
Accordingly, Doe 3 reached out to Kutzler and Bender to determine a day
that Doe 1 could come into the office to upload or complete the delinquent
STEB reports, recognizing that Doe 1 did not want to be present if
Halcovage was in the courthouse. However, Bender instructed Kutzler
that the STEB reports were not an HR issue and, as such, she should not
answer Doe 3’s email. For her part, Kutzler stated in her deposition that
she reminded Bender that Doe 1 still did not have the necessary
equipment to complete her work from home. Kutzler further stated that
she attempted to assist in getting the plaintiffs the equipment they
needed to work from home. In fact, Doe 3 stated in her deposition that
she believed Kutzler tried to help them, although she believed Kutzler
should have tried to do more.
However, because of the delinquent reports, Bender ultimately
made the decision to revoke Doe 1 and Doe 2’s work from home status
and move them into offices in another county building, the 410 Building.
Bender stated in his deposition that he believed Does 1 and 2 could safely
work from the 410 Building and complete their work. While the STEB
reports were Doe 1’s responsibility, Does 3 and 4 ultimately finished and
submitted the reports so that they were no longer delinquent.
Additionally, around this same time, another employee made a statement
to HR regarding Doe 2’s behavior while out working on the road, alluding
to possible illicit drug use. Kutzler and Roth met with this individual and
had her sign a statement memorializing what she had told HR. According
to the plaintiffs, this employee later expressed to them that she felt
compelled by Roth and Kutzler to sign the statement.
Toward the end of 2020, Does 1 and 2 were informed by Kutzler
that they were no longer permitted to work from home and would have
to work from the 410 Building. The 410 Building is a Schuylkill County
building that houses several offices, including the election bureau. Thus,
the public had access to the building. However, the plaintiffs were told
that Halcovage would not be permitted to access the 410 Building after
Does 1 and 2 were relocated to the building. In fact, several individuals,
including Kutzler and Bender, informed the plaintiffs that Halcovage
could be arrested if he accessed the building, and that Halcovage was told
the same. However, Kutzler stated in her deposition that Halcovage
pushed back, arguing with Bender that he was entitled to go anywhere
he wanted. Bender also testified that Halcovage pushed pack on the
restrictions imposed upon him. Sheriff Groody indicated in his deposition
that while he did not think he could personally arrest Halcovage for
entering the 410 Building, he would have informed the Pottsville Police,
who could have arrested Halcovage in their discretion.
Kutzler arranged for Does 1 and 2 to meet with Bender to get the
keys to their offices. However, the plaintiffs voiced a concern, given that
a complaint had been filed with the Equal Employment Opportunity
Commission (“EEOC”) by that time and Bender was named in the
complaint. Ultimately, in December of 2020, Kutzler met with Does 1
and 2 to give them their office keys. Upon entering the assigned office
spaces, Does 1 and 2 had concerns with the condition of the offices. These
concerns included wet ceiling tiles, old food items, mouse droppings, lack
of cabinet space and old computers taking up space. Given the plaintiffs’
concerns, Kutzler tried contacting a cleaning service but ended up
cleaning the offices herself. In addition to the cleanliness of the offices,
the plaintiffs also voiced a concern regarding a lack of parking spaces at
the building for Does 1 and 2. The plaintiffs assert that Kutzler was
copied on many emails with respect to these issues but ignored their
requests and concerns.
Around this same time, in December of 2020, Does 1 and 2
requested time off to speak with the Pennsylvania Attorney General’s
office about Halcovage. They were informed that they would either need
to use their paid time off or not be paid for the day. According to Kutzler,
Defendant Bender was the individual who determined that the plaintiffs
would need to use their paid time off or not be paid, even after Kutzler
informed him that the plaintiffs’ requests related to their complaints
against Halcovage.
Does 1 and 2 began working from the 410 Building in January of
2021, around the same time that Defendant Zula started as the County’s
HR Director. For her part, Zula stated in her deposition that she had been
informed to some extent by Kutzler prior to her start date of the plaintiffs’
complaints against Halcovage and the County. Around this time, the
plaintiffs reported several incidents to HR, including that Halcovage was
using a door that he was explicitly told he could not use, and that Does 1
and 2 saw Halcovage lurking around outside of the 410 Building shortly
after they began working from there. Additionally, Doe 3 received a call
from Doe 2 reporting that Halcovage was seen following her in her car
while she was working in the field. This led Doe 3 to instruct Does 1 and
2 to work from home. However, Doe 3 received a notice from Bender and
Zula shortly thereafter informing her that she did not have the authority
to allow her employees to work from home.
During this time, Bender expressed frustration with Does 3 and 4
and their lack of communication with him as the County Administrator
and their direct supervisor. According to Bender, it was a combination of
the lack of communication with Does 3 and 4, as well as the delinquent
STEB reports by Doe 1, that led to a discussion regarding restructuring
the tax office in 2021.5 Bender directed Defendant Zula to investigate
issues with the Tax Assessment office. Zula stated in her deposition that
prior to her conclusion that the offices should be separated, there were
discussions about removing Doe 3 from her position. At the conclusion of
her investigation, Zula recommended to Bender that the offices be
restructured and separated into Tax Claim and Tax Assessment,
5 The record indicates that prior to 2019, the Tax Claim and Tax
Assessment Offices were separate. In May of 2019, Halcovage brought up
the idea of combining the two offices and placing Doe 3 in charge of both
offices, which was ultimately approved by a vote of the commissioners.
effectively removing Doe 3 from her position over both offices. Zula stated
that she based her recommendation primarily on the delinquent STEB
reports. On March 17, 2021, the restructuring was voted on at the board
of commissioners meeting, and the commissioners voted 2 to 1 in favor of
transferring Doe 3 to the position of Tax Claim Director and Doe 4 to
Deputy Chief Assessor. These transfers resulted in a reduction in salary
for Does 3 and 4. Halcovage was one of the two “yes” votes in favor of
transferring Does 3 and 4. Does 3 and 4 were notified by email of the
transfer and restructure of the office.6 The plaintiffs assert that Kutzler
was one of the individuals who informed them of the restructuring or
demotions, and that she took part in the discussions to restructure the
office. Shortly after the restructuring of the tax offices, Kutzler’s
temporary employment with the County ended.
Following the vote, and after the time the plaintiffs filed the initial
complaint in this matter, the County hired Tony Alu as a consultant to
oversee the restructure. According to Bender, when Alu first visited the
tax offices, Does 3 and 4 made unprofessional comments to Alu at some
6 It appears that at the time Does 3 and 4 were notified of the transfer,
Doe 4 was out on bereavement leave following the death of her brother.
point that resulted in them receiving written reprimands after an HR
investigation conducted by Zula. Bender stated in his deposition that at
the time the written reprimands were issued, he already felt that Does 3
and 4 should be terminated, a sentiment that appeared to be, at least in
part, based on his frustrations with their lack of communication with him
as their direct supervisor.
Thereafter, in May of 2021, Kent Hatter was appointed to the
position of Chief Assessor for the Tax Assessment department. Under
Hatter’s supervision, Doe 1 was still having an issue submitting timely
STEB reports. However, Bender did not question Hatter’s operation of
the Tax Assessment department as he did when Doe 3 headed the
department. In July of 2021, Hatter issued a warning to Doe 2 regarding
her lack of work product and her absences from work. Ultimately, the
County determined that Doe 2 had abandoned her position and
considered her to have resigned her position with the County. Doe 2
attempted to grieve this employment determination, but no one
responded to her grievance.
At some time during the summer of 2021, Does 3 and 4 were
approved for leave under the Family and Medical Leave Act (“FMLA). In
August of 2021, while on FMLA leave, Doe 3 accessed her County
LexisNexis account from her cellular phone to retrieve a bill that was due
for the County. Deb Dash, who took over some of Doe 3’s responsibilities
while she was on leave and was receiving Doe 3’s County emails, received
a notification that someone had accessed the LexisNexis account from a
cellular phone. Ms. Dash informed Roth, who contacted LexisNexis to
determine who had accessed the account. After it was determined that
Doe 3 had accessed the account, rather than reach out to Doe 3 and ask
why she had accessed the LexisNexis account, Bender directed Zula to
gather information on the account’s search history dating back to
January of 2020. During this time, in September of 2021, Does 3 and 4
were suspended without pay by Bender pending the results of the
investigation. Following this initial investigation by Bender and Zula,
and following a subsequent outside investigation into the matter ordered
by Commissioner Hess, Bender directed Zula to draft termination
personnel action reports (“PARs”) for Does 3 and 4. In November of 2021
and March of 2022, the commissioners met to vote on the termination
PARs, but there was ultimately no action on the termination PARs. As of
the filing of the instant motion, Does 3 and 4 remain suspended without
pay from their County positions.7
D. Procedural History
The plaintiffs filed this action on March 16, 2021, and an amended
complaint on October 29, 2021, which is currently the operative
complaint. (Docs. 1, 63). The amended complaint names the County,
Halcovage, Bender, Roth, Zula, and Kutzler as defendants. As it relates
to the individual defendants, after they filed motions to dismiss, the
Court dismissed the PHRA discrimination claims against them, but all
other claims were permitted to proceed forward. ( Docs. 124, 126, 132,
134, 136).
As to Kutzler, the plaintiffs assert claims of retaliation and aiding
and abetting discrimination under the Pennsylvania Human Relations
Act (Counts VI, VII); discrimination and creation of a hostile work
environment under the Fourteenth Amendment’s Equal Protection
clause (Counts VIII, IX); and retaliation in violation of the First
7 Kutzler was hired to temporarily fill the HR Director position when Zula
resigned in May of 2022. However, there are no allegations that Kutzler
had any significant interaction with the plaintiffs during her second term
of employment with the County.
Amendment. (Count XIII). Kutzler has now filed a motion for summary
judgment, arguing that the plaintiff’s retaliation and aiding and abetting
claims under the PHRA, Equal Protection claims, and First Amendment
retaliation claims fail as a matter of law. (Doc. 240).
After consideration, we conclude that there are genuine issues of
material fact that preclude summary judgment in favor of the defendant.
Accordingly, the motion will be denied.
III. Discussion
A. Motion for Summary Judgment – Standard of Review
The defendant has filed a motion for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(a) provides
that a court shall grant summary judgment “if the movant shows that
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). The
materiality of the facts will depend on the substantive law.
, 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts
that might affect the outcome of the suit under governing law” will
preclude summary judgment. . A dispute is only genuine if a reasonable
juror could find in favor of the nonmoving party. .
The moving party bears the initial burden to “demonstrate the
absence of a genuine issue of material fact,” relying on pleadings,
depositions, affidavits, and other evidence in the record.
, 477 U.S. 317, 323 (1986). If the movant “successfully points to
evidence of all of the facts needed to decide the case on the law,” the
nonmovant can still defeat summary judgment by pointing to evidence in
the record which creates a genuine dispute of material fact and from
which a jury could find in its favor.
, 479 F.3d 232, 238 (3d Cir. 2007). However, “[i]f
the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” , 477 U.S. at 249-50
(citations omitted). A court may not make credibility determinations or
weigh the evidence, but “must view the facts in the light most favorable
to the non-moving party.” , 418
F.3d 265, 267 (3d Cir. 2005).
B. The Defendant’s Motion for Summary Judgment will be Denied.
As we have noted, Kutzler challenges the plaintiffs’ PHRA
retaliation and aiding and abetting, Equal Protection, and First
Amendment retaliation claims. (Doc. 240). After a careful review of the
record, we conclude that there are genuine issues of material fact with
respect to these claims against Kutzler. Accordingly, the motion will be
denied.8
1. PHRA Retaliation and Aiding and Abetting
Kutzler first challenges the plaintiffs’ PHRA claims against her for
retaliation and aiding and abetting discrimination. Section 955(d) of the
PHRA prohibits any person from discriminating against an individual
because the individual opposed an unlawful discriminatory practice
under the PHRA. 42 P.S. § 955(d). PHRA retaliation claims follow the
same framework as retaliation claims under Title VII of the Civil Rights
Act—a plaintiff must show she engaged in protected activity, that she
was subject to adverse employment action, and that there is a causal
connection between her protected activity and the adverse action taken
against her. , 409 F.3d 178, 188 (3d Cir. 2005) (noting
8 As we will explain further, these claims will proceed against Kutzler
based on the plaintiffs’ assertions that she was involved in the
restructuring of the tax offices and demotions of Does 3 and 4, as well as
the assertions that Kutzler was aware of the plaintiffs’ complaints of
harassment and retaliation but ignored their requests for help. However,
the record does not establish Kutzler’s involvement in the other adverse
actions taken against the plaintiffs, and the plaintiffs may not proceed
based on those allegations against Kutzler.
that PHRA retaliation claims follow Title VII’s
framework).
In the instant case, it is undisputed that the plaintiffs engaged in
protected activity when they reported Halcovage’s sexual abuse and
harassment, first to HR and the County, and then by filing a claim with
the EEOC and eventually this federal civil rights lawsuit. Further, with
respect to some of the allegations, the plaintiffs have shown that they
were subjected to adverse employment actions by Kutzler. The evidence
establishes that while Kutzler did not begin her employment with the
County until September of 2020, a factfinder could conclude that she was
involved in at least one adverse action taken against the plaintiffs—her
involvement in the restructuring of the tax offices, resulting in the
demotion of Does 3 and 4. At the very least, the record is unclear as to
Kutzler’s exact involvement, although it is undisputed that she met with
the plaintiffs prior to the commissioners’ vote on the restructuring, and
she was one of the individuals who informed Does 3 and 4 of the
restructuring. Thus, we find that a reasonable factfinder could conclude
that Kutzler was involved, in some respect, in this decision, which would
qualify as an adverse action against the plaintiffs.
However, with respect to the other adverse actions alleged by the
plaintiffs, we conclude that no reasonable juror could find that Kutzler
was involved in the decision-making process. As to the allegations that
Kutzler revoked Doe 1 and 2’s work from home status and failed to
provide them with proper equipment, the record establishes that Bender
was the individual responsible for moving Does 1 and 2 to the 410
building, and that Kutzler attempted to get the plaintiffs the supplies
they needed while they were working from home. In fact, even Doe 3
conceded that Kutzler tried to help the plaintiffs, although she believed
Kutzler should have done more. Similarly, the allegations that Kutzler
denied Doe 1 and 2’s time-off requests is not supported by the record,
which indicates that Bender made the decision to deny the time off, even
after Kutzler informed him of the reason for their requests. As to the
allegation that Kutzler disciplined Doe 3 for permitting her employees to
work from home, the record establishes that this discipline came from
Bender and Zula, rather than Kutzler. Accordingly, the plaintiffs cannot
rely on these allegations to establish a PHRA retaliation claim against
Kutzler.
Finally, the plaintiffs have provided evidence from which a jury
could find a causal connection to the plaintiffs’ protected activity. While
Kutzler did not begin her employment until after the plaintiffs made
their complaints, she conceded in her deposition that she was informed
of the plaintiffs’ complaints by Debra Twigg when she began her
employment in September of 2020. Additionally, the adverse action
which Kutzler can be said to have been involved with took place after the
plaintiffs made Kutzler aware that they believed she was involved in
some way in the County’s retaliatory actions toward them.
Accordingly, viewing the evidence in the record in a light most
favorable to the plaintiffs, we find that a jury could conclude that the
plaintiffs suffered certain adverse employment actions—such as the
restructuring of the tax offices leading to the demotions of Does 3 and 4—
at the hands of Kutzler after they reported Halcovage’s and the County’s
unlawful, discriminatory behavior. Thus, the motion for summary
judgment will be denied with respect to this claim. However, as we have
noted, to the extent the plaintiffs base this claim on Kutzler’s alleged
involvement in revoking Doe 1 and 2’s work from home status, failing to
provide them with equipment, denying their time-off requests, and
disciplining Doe 3, we find that the record does not support these
allegations against Kutzler with respect to the PHRA retaliation claim.
Regarding the aiding and abetting claim, § 955(e) prohibits an
employer or individual from aiding and abetting unlawful discrimination
or retaliation under the PHRA. § 955(e). Typically, only supervisory
employees are liable under the aiding and abetting provision of the
PHRA. , 381 F. Supp. 3d 393, 415 (E.D. Pa.
2019). However, the PHRA does not define what qualifies as a supervisor,
so we must look to Title VII for guidance.
, 2014 WL 109087, at *2 (W.D. Pa. Jan. 10, 2014). Under Title
VII, an individual qualifies as a supervisor “if he or she is empowered by
the employer to take tangible employment actions against the victim.”
, 570 U.S. 421, 424 (2013). “Tangible
employment actions” including actions that involve “a significant change
in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” at 429, 431 (citations and
quotations omitted). The issue of whether a person possesses supervisory
authority “must be answered by reference to the power that the
individual actually holds, not by reference to his or her formal job title,”
and thus, is a question of fact. , 300
F. Supp. 681, 692 (W.D. Pa. 2018) (citations and quotations omitted).
Here, although we find this to be a close case, we conclude that at
a minimum, there is an issue of fact regarding whether Kutzler had
supervisory authority over the plaintiffs. As we have stated, Kutzler can
be said to have been involved in certain adverse employment actions
taken against the plaintiffs, such as the restructuring of the tax offices,
which resulted in the demotions of Does 3 and 4. While the record
indicates that she was not as involved as Defendant Zula in certain
adverse actions, such as disciplining or suspending the plaintiffs, we
conclude that a jury could find that Kutzler had the requisite supervisory
authority over the plaintiffs to incur liability under the PHRA’s aiding
and abetting provision.
“Further, it has been established that “[w]hen a supervisory
employee has knowledge of conduct which creates a hostile work
environment, inaction by such an employee or failing to take prompt
remedial action to prevent harassment rises to the level of individual
aiding and abetting” under the PHRA.
, 355 F. Supp. 3d 227, 238 (E.D. Pa. 2019) (citations and
quotation marks omitted). In this case, we conclude that a reasonable
jury could find for the plaintiffs on this PHRA aiding and abetting claim.
The plaintiffs have provided evidence that, if credited, establishes that
Kutzler was aware of the harassment and retaliation of which the
plaintiffs were complaining, and rather than intervene to attempt to
remedy the harassment and retaliation, took part in tangible adverse
employment actions taken against the plaintiffs. Accordingly, Kutzler’s
motion for summary judgment on this claim will be denied.
2. Equal Protection
Kutzler also challenges the plaintiffs’ Equal Protection claims
against her. She asserts that she was not responsible for some of the
alleged adverse actions taken against the plaintiffs, and that she had no
supervisory authority over her codefendants who are alleged to have
acted in a discriminatory manner.
To state a claim for discrimination under the Equal Protection
clause, the plaintiffs must show that they endured “‘purposeful
discrimination’ because of [their] sex.” , 120
F.3d 1286, 1293 (3d Cir. 1997) (citation omitted). Accordingly, they must
establish that they were subjected to “(1) disparate treatment in relation
to other similarly situated individuals, and (2) that the discriminatory
treatment was based on sex.”
, 97 F. Supp. 3d 657, 667 (W.D. Pa. 2015). To
establish individual liability under § 1983, “there must be some
affirmative conduct by the [individual] that played a role in the
discrimination.” , 780 F. Supp. 1026, 1045
(D.N.J. 1992) (quoting , 895 F.2d at 1478) (alterations in
original). Personal involvement can be shown “either ‘through allegations
of personal direction or of actual knowledge and acquiescence,’ or through
proof of direct discrimination.” , 895 F.2d at 1478 (citations
omitted).
Further, to state a claim for a hostile work environment, the
plaintiffs must demonstrate (1) intentional discrimination based on their
sex; (2) that “the discrimination was severe or pervasive”; (3) they were
detrimentally affected by the discrimination; (4) that the discrimination
“would have detrimentally affected a reasonable person in like
circumstances”; and (5) employer liability.
, 918 F.3d 289, 293 (3d Cir. 2019).
Here, the plaintiffs have set forth evidence from which a jury could
find that Kutzler engaged in purposeful discrimination of the plaintiffs
and contributed to the hostile work environment. It is undisputed that
Kutzler was made aware of the plaintiffs’ complaints of sexual
harassment and retaliation as of at least September of 2020. The
plaintiffs continued to complain of harassment and retaliation, and
instead of assisting the plaintiffs or attempting to intervene, Kutzler
appears to have been involved in at least some of the adverse actions that
were taken against the plaintiffs. These actions include the restructuring
of the tax offices and the demotions of Does 3 and 4. Further, the
plaintiffs have alleged that Kutzler was aware of their complaints of
retaliation and harassment, and rather than intervene, ignored their
requests for help.
Thus, we conclude that the plaintiffs have provided enough support
at this stage to show that they were subjected to intentional
discrimination by Kutzler, that the discrimination was severe or
pervasive and detrimentally affected them, and that this discrimination
would detrimentally affect a reasonable person. Further, there is a basis
for employer liability in this case. Employer liability may be found where
a supervisor creates a hostile work environment; in such cases, “[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.”
, 524 U.S. 775, 807 (1998). As we have already determined,
there exists a question of fact regarding whether Kutzler had a
supervisory role over the plaintiffs as the interim HR director.
Accordingly, if a jury concludes that Kutzler is a supervisor, a basis for
employer liability exists, and we find that the plaintiffs have sufficiently
set forth evidence from which a jury could find in their favor on their
Equal Protection claims. Accordingly, Kutzler’s motion for summary
judgment on the plaintiffs’ Equal Protection claims will be denied.
3. First Amendment Retaliation
Finally, Kutzler challenges the plaintiffs’ First Amendment
retaliation claim against her, asserting that she did not have the
requisite authority to engage in the alleged retaliatory acts taken against
the plaintiffs.
To assert a First Amendment retaliation claim, the plaintiffs must
show: (1) that they engaged in constitutionally protected conduct; (2) that
they suffered “retaliatory action sufficient to deter a person of ordinary
firmness from exercising h[er] constitutional rights”; and (3) a causal
connection between the protected activity and the retaliatory act.
, 463 F.3d 285, 296 (3d Cir. 2006).
Here, it is undisputed that the plaintiffs engaged in constitutionally
protected activity. Not only did they file internal complaints about the
sexual harassment and retaliation they were experiencing, but they also
filed a charge with the EEOC in 2020 and ultimately this federal civil
rights lawsuit in 2021, naming the County and the individual
defendants. , , 767 F. App’x 288, 307 (3d Cir.
2019) (finding that police chief’s lawsuit alleging retaliation by his
employer constituted protected activity under the First Amendment).
Further, the plaintiffs have shown that they were subjected to an adverse
action by Kutzler. As discussed above, the plaintiffs have provided
evidence showing Kutzler’s involvement in at least some retaliatory
actions that occurred after the plaintiffs reported Halcovage’s
harassment, and later, the County’s ongoing discrimination and
retaliation of the plaintiffs. These include but are not limited to failing to
investigate the plaintiffs’ complaints of harassment and retaliation, as
well as participating in the demotions of Does 3 and 4. These actions
would be sufficient to deter a person of ordinary firmness from exercising
her rights.
Finally, we conclude that there is a causal connection between the
plaintiffs’ protected activity and the retaliatory actions taken against
them. A causal connection may be shown by either (1) “an unusually
suggestive temporal proximity” between the adverse action and protected
activity, or (2) “a pattern of antagonism coupled with timing.”
, 480 F.3d 259, 267 (3d Cir. 2007) (citations
omitted). Here, the plaintiffs have provided evidence from which a jury
could conclude that their reports of sexual harassment and abuse, and
later filings of an EEOC charge and a federal lawsuit, were causally
connected to the adverse employment actions taken against them. The
plaintiffs assert, and the defendant has not disputed, that they had never
been subject to any adverse employment actions prior to May of 2020.
However, as we have discussed, after Kutzler’s employment began in
2020 and following the reports of harassment and abuse, the plaintiffs
were subjected to a variety of adverse employment actions that Kutzler
appears to have been involved with, although her involvement may have
been more limited than her codefendants. Thus, the evidence, if credited
by a jury, could show at a pattern of antagonism by Kutzler following the
plaintiffs’ protected activity. Accordingly, summary judgment will be
denied as to the plaintiffs’ First Amendment claim.
IV. Conclusion
For the foregoing reasons, Defendant Kutzler’s motion for summary
judgment (Doc. 240) will be DENIED.
An appropriate order follows.
Submitted this 12th day of March 2024.
Daryl F. Bloom
United States Magistrate Judge