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, Heidi Zula.1 (Doc. 239). In this motion, Zula
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. 247, 279, 298).2 After consideration, the
motion will be denied.
II. Background3
1 The individual defendants have all filed separate motions for summary
judgment (Docs. 236, 238, 240, 243), which will be addressed in separate
Memorandum Opinions.
2 Zula has also filed a motion to strike the plaintiffs’ counterstatement of
facts, arguing that it is an improper filing under Local Rule 56.1, and
further, that the counterstatement of facts contains legal conclusions and
unsupported factual assertions. (Doc. 295). However, rather than strike
the plaintiffs’ counterstatement of facts, we will simply disregard any
factual assertions that are unsupported by the record or amount to mere
legal conclusions. , 2020 WL 1864609, at *1 n.1
(D.N.J. April 13, 2020) (denying the defendant’s motion to strike the
plaintiff’s response).
3 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. 247, 260, 279, 291-92, 298).
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
Zula, the plaintiffs assert claims of retaliation and aiding and abetting
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).4
A. Allegations of Halcovage’s Sexual Abuse and Harassment
Prior to May of 20205
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
4 Count X was misnumbered in the amended complaint as Count XIII.
Therefore, to avoid confusion, we will refer to this count as Count XIII.
5 For the sake of brevity, we limit this discussion to the factual allegations
and supporting evidence involving Defendant Zula. It is undisputed that
Zula did not begin her employment with the County until January of
2021, and that at the earliest, she was informed in or around November
of 2020 of the allegations of abuse and harassment by Halcovage and
others.
harassment included unannounced and uninvited visits to her home,
incessant 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,
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 took the form of jokes
of a sexual nature, as well as starting rumors about himself having
relationships with women in the office. The plaintiffs 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
behavior but did nothing to stop it.
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, who was 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 also included allegations by the other Doe plaintiffs
regarding Halcovage’s harassment. Ms. Twigg compiled a report after
interviewing the Doe plaintiffs and Halcovage, as well as other witnesses,
and this 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 that 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 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 the
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, and Halcovage was in the
boardroom, despite the fact that 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 laptop new
computers for Does 1 and 2. However, in her deposition, Kutzler stated
that 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. In fact, Bender was copied
on many emails, sent either by Doe 3 or the plaintiffs’ attorney, making
the County aware of the deficiencies that were hindering Does 1 and 2
from performing their jobs at home.
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 elicit 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.
Does 1 and 2 were informed toward the end of 2020 that they would
have to work from the 410 Building and that they were no longer
permitted to work from home. 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 further 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 charge had been filed with the Equal Employment Opportunity
Commission (“EEOC”) by that time and Bender was named in the charge.
Ultimately Kutzler met with Does 1 and 2 to give them their office keys
in December of 2020. 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 other 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. Again, Bender was copied on many emails
with respect to these issues, and the plaintiffs assert that he ignored their
requests and concerns.
Does 1 and 2 ultimately 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 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. Although he had been named in their EEOC
complaint, he stated in his deposition that he believed they still needed
to communicate with him on some level for the County’s business to
function properly and efficiently. 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 2021.6 Zula stated in her deposition that
Bender directed her to look into issues with the Tax Assessment office,
and that prior to her conclusion that the offices should be separated,
there were discussions about removing Doe 3 from her position.
Ultimately, Zula recommended to Bender that the offices be restructured
6 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.
and separated into Tax Claim and Tax Assessment, effectively removing
Doe 3 from her position over both offices. Zula stated in her deposition
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
transfering 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 to transfer
Does 3 and 4. Does 3 and 4 were notified by email of the transfer and
restructure of the office.7
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
point that resulted in them receiving written reprimands after an HR
investigation, which was conducted by Zula. Bender stated in his
deposition that at the time the written reprimands were issued, he
7 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.
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, but 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, 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, got 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. The initial investigation by Zula revealed a list of names
that had been searched, including employees in the County. After sharing
the list with Bender and the county commissioners, including Halcovage,
and interviewing Does 3 and 4, Zula ultimately determined that the
searches had not been conducted for an appropriate business purpose and
violated LexisNexis protocols.
Following this initial investigation by Bender and Zula, Bender
directed Zula to draft termination personnel action reports (“PARs”) for
Does 3 and 4. In November of 2021, the commissioners met to vote on the
termination PARs, and Commissioner Hess moved to table the
terminations, expressing serious concerns regarding the termination of
Does 3 and 4 based on an investigation performed by individuals who
were named as defendants in the instant lawsuit. Accordingly, Hess
called for an independent investigation into Doe 3 and 4’s use of
LexisNexis prior to a vote on their termination. The County then retained
the law firm of Eckert Seamans to review Zula’s investigation and
provide an independent report.
In March of 2022, Bender again proposed the termination of Does 3
and 4 with the supporting recommendations of Zula and Roth. At the
board of commissioners meeting, Halcovage moved to terminate Does 3
and 4 but abstained from the actual vote on their terminations, while
Commissioner Hetherington voted yes, and Hess voted no. Commissioner
Hess commented that he did not see enough evidence that Does 3 and 4
utilized LexisNexis with the intent to use any personal information or
cause financial harm to anyone. Commissioner Hetherington made a
closing statement indicating his disappointment in his fellow
commissioners given the serious allegations against Does 3 and 4 and the
findings reported by Eckert Seamans, which he felt supported
termination. In his deposition, Commissioner Hess indicated his belief
that the County was looking to “build a case” against Does 3 and 4 and
looking for reasons to discipline or terminate them. As of the filing of the
instant motion, Does 3 and 4 remain suspended without pay from their
County positions.
D. Procedural History
The plaintiffs filed this action on March 16, 2021, and filed 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 Zula, 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
Amendment. (Count XIII). Zula 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. 239).
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, Zula challenges the plaintiffs’ PHRA retaliation
and aiding and abetting, Equal Protection, and First Amendment
retaliation claims. (Doc. 239). However, after a careful review of the
record, we conclude that there are genuine issues of material fact with
respect to these claims against Zula. Accordingly, the motion will be
denied.
1. PHRA Retaliation and Aiding and Abetting
Zula 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
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, the
plaintiffs have shown that they were subjected to adverse employment
actions by Zula. The evidence establishes that while Zula did not begin
her employment with the County until January of 2021, she was involved
in several adverse actions taken against the plaintiffs. These alleged
retaliatory actions included the restructuring of the tax offices, resulting
in the demotion of Does 3 and 4; denying time-off and work from home
requests made by Does 1 and 2; disciplinary action taken against the
plaintiffs, such as write ups and suspensions; and taking part in
investigations such as the LexisNexis investigation, which resulted in
Does 3 and 4 being indefinitely suspended.
Finally, the plaintiffs have provided evidence from which a jury
could find a causal connection to the plaintiffs’ protected activity. While
Zula 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 Kutzler prior to beginning her employment.
Additionally, some of the adverse actions alleged took place after the
plaintiffs had made Zula aware that they believed she was involved in
the County’s retaliatory actions toward them. In fact, following the
plaintiffs’ statements to that effect, Zula continued to be involved in
investigations regarding the plaintiffs’ complaints and other adverse
actions taken against 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 adverse employment actions at the hands of Zula 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.
With respect to 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). Here, Zula contends that as the HR director, she had no
supervisory authority over the plaintiffs, and thus cannot be liable under
the PHRA’s aiding and abetting provision. 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, Zula contends that as the HR director, she had no actual
supervisory authority to take tangible employment actions against the
plaintiffs. Rather, she asserts that any actions taken were taken by
Bender, the plaintiffs’ direct supervisor. However, we conclude that at a
minimum, there is an issue of fact regarding whether Zula had
supervisory authority over the plaintiffs. Zula stated in her deposition
that she was involved in certain adverse employment actions, such as the
demotions of Does 3 and 4 and the suspensions of Does 3 and 4 related to
the LexisNexis investigation. Moreover, she stated that she met with
Does 3 and 4 on several occasions with respect to the operations of the
tax offices, sometimes without Bender present. She was also involved in
issuing disciplinary actions to the plaintiffs such as write ups and
suspensions. Thus, we conclude that a jury could find that Zula 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
Zula 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, Zula’s motion for
summary judgment on this claim will be denied.
2. Equal Protection
Zula also appears to challenge the plaintiffs’ Equal Protection
claims against her. She again asserts that she was not responsible for
some of the alleged adverse actions taken against the plaintiffs.
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 Zula engaged in purposeful discrimination of the plaintiffs and
contributed to the hostile work environment. It is undisputed that Zula
was made aware of the plaintiffs’ complaints of sexual harassment as of
at least January of 2021. The plaintiffs continued to complain of
harassment and retaliation, and instead of assisting the plaintiffs or
attempting to intervene, Zula appears to have been involved in various
adverse actions that were taken against the plaintiffs. These actions
include but are not limited to the demotions of Does 3 and 4, their
suspensions during the LexisNexis investigation, and other disciplinary
actions taken against the plaintiffs.
Thus, we conclude that the plaintiffs have provided enough support
at this stage to show that they were subjected to intentional
discrimination by Zula, 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 Zula had a supervisory
role over the plaintiffs as the HR director. Accordingly, if a jury concludes
that Zula 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,
Zula’s motion for summary judgment on the plaintiffs’ Equal Protection
claims will be denied.
3. First Amendment Retaliation
Finally, Zula appears to challenge 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.
In order 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 adverse
actions by Zula. As discussed above, the plaintiffs have provided evidence
showing Zula’s involvement in a host of 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 and suspensions of Does 3 and 4 and other disciplinary actions
involving Does 1 and 2, including write ups and suspensions. All 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, following the reports of harassment and
abuse, the plaintiffs were subjected to a variety of adverse employment
actions that, after Zula’s employment began in 2021, Zula appears to
have been involved with. Thus, the evidence, if credited by a jury, shows
at the very least a pattern of antagonism by Zula 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 Zula’s motion for summary
judgment (Doc. 239) will be DENIED.
An appropriate order follows.
Submitted this 7th day of March 2024.
Daryl F. Bloom
United States Magistrate Judge