Doe v. Schuylkill County Courthouse

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, Glenn Roth.1 (Doc. 243). In his motion, Roth

challenges the plaintiffs’ retaliation and aiding and abetting claims

under the Pennsylvania Human Relations Act (“PHRA”) and their Equal

Protection and First Amendment retaliation claims, arguing that the

plaintiffs have not set forth sufficient factual support and evidence to

support these claims against him. The motion is fully briefed and ripe for

resolution. (Docs. 255, 273, 302).2 After consideration, the motion will be

denied.

1 The individual defendants have all filed separate motions for summary

judgment (Docs. 236, 238, 239, 240), which will be addressed in separate

Memorandum Opinions.

2 Roth 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. (Docs. 303, 305). 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).

II. Background3

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

Roth, 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

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. 255, 261-65, 276, 289-90, 301).

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 Roth. Roth has asserted,

and the plaintiffs do not dispute, that Roth was unaware of the sexual

relationship between Doe 1 and Halcovage prior to Doe 1’s report to her

supervisor in May of 2020.

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,

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.

According to Does 3 and 4, who began their employment with the

County prior to Does 1 and 2, Halcovage regularly subjected women in

the tax offices to sexual harassment. Halcovage made comments to Doe

3 about her relationship with her husband and her appearance. He also

made derogatory remarks insinuating that some of the female employees

were not intelligent, made comments about the how Doe 4 was eating

freeze pops and told inappropriate and sexually charged jokes. Does 3

and 4 recounted Halcovage making derogatory statements about their

then-supervisor, Virginia Murray, and starting rumors that she was a

lesbian.

Does 3 and 4 recounted that Halcovage would often come into the

Tax Claim and Tax Assessment offices toward the end of the day and

position himself in front of their doors so that they could not leave the

office until he was finished speaking with them. Halcovage made a

comment to Doe 4 while she was in the office about having a job for her

while she was “down on her knees,” which she took to mean he was

insinuating that she should perform oral sex on him. Another time,

during an argument between Halcovage and Doe 4, Halcovage

interrupted Doe 4 by suggesting they have sex. He also made a comment

to Doe 4 after they had taken a sexual harassment training, telling her

she got the number 69 wrong, which Doe 4 took to be a reference to a

sexual position.

Defendant Glenn Roth, the assistant solicitor for the County, was

either present for or was aware of some of these comments made by

Halcovage. In his deposition, Roth recounted that Halcovage regularly

made remarks around the office that could have sexual connotations. He

stated that he and Doe 3, who were friends at the time, remarked to each

other that Halcovage would one day say something to the wrong person.

However, according to Roth, he believed that Halcovage’s comments were

harmless. He also stated that Doe 3 never informed him that Halcovage’s

comments made her uncomfortable or offended her. The plaintiffs assert

that they directly complained to Roth about Halcovage’s conduct, and

Roth told them he would talk to Gary Bender to see what could be done.

Roth specifically stated that he was informed about Halcovage’s

comments to Doe 4 about freeze pops and being “on her knees,” but he

did not report these comments to HR.

The plaintiffs additionally assert that Roth himself made

derogatory comments about women during this time. These allegedly

include comments about Roth’s wife, which Roth denies, as well as

comments about how women should dress around the office and about

how men were superior to women generally. They also allege that Roth

threatened to punch a female coworker in the face, which Roth contends

was an offhand comment made to Doe 3 in the heat of the moment and

was not meant to be taken literally.

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 Doe 1

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. Roth sat in on some

of the interviews. 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. Roth prepared the County’s press release

statement about the investigation.

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. Roth voiced his opposition

to some of these measures, indicating that he did not think the Sheriff

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 reserved 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, Roth 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.

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, which was prepared by Roth with the

information given to Kutzler, 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, and later

provided an affidavit contradicting some of what was contained in the

first statement she had signed.

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 for

Does 1 and 2 at the building. The plaintiffs assert that Roth was copied

on many emails with respect to these issues but ignored their requests

and concerns.

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 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. While these incidents were not

reported directly to Roth, he was copied on Doe 3’s emails informing

Bender, Kutzler, and others of these incidents. For his part, Roth testified

in his deposition that he tried to limit his communications with the

plaintiffs as much as possible after he was named in the EEOC charge,

and later, the federal lawsuit.

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 2021,6 which Roth appears to have been involved in to

some degree. Bender directed Defendant Zula to investigate issues with

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.

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,

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.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

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.

tax offices, Does 3 and 4 made unprofessional comments to Alu 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.

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 Roth, 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). Roth 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. 243).

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, Roth challenges the plaintiffs’ PHRA retaliation

and aiding and abetting, Equal Protection, and First Amendment

retaliation claims. (Doc. 243). After a careful review of the record, we

conclude that there are genuine issues of material fact with respect to

these claims against Roth. Accordingly, the motion will be denied.

1. PHRA Retaliation and Aiding and Abetting

Roth first challenges the plaintiffs’ PHRA claims against him 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 Roth. The evidence establishes that Roth had at least some

involvement in the restructuring of the tax offices, resulting in the

demotion of Does 3 and 4. Roth testified in his deposition that he was

part of the discussions to onboard Tony Alu as a consultant for the

restructuring. He also stated that he was involved to some extent in the

LexisNexis investigation, in that he was the initial contact to LexisNexis

after receiving the report that someone had accessed the account, and

that he was asked to review the list of names run by Does 3 and 4. Thus,

we find that a reasonable factfinder could conclude that Roth was

involved, in some respect, in these decisions, which would qualify as an

adverse employment actions against the plaintiffs.8

Finally, the plaintiffs have provided evidence from which a jury

could find a causal connection to the plaintiffs’ protected activity. It is

undisputed that Roth was aware of the plaintiffs’ complaints of

harassment and retaliation. Additionally, the adverse actions which Roth

can be said to have been involved with took place after the plaintiffs made

8 To the extent the plaintiffs are relying on Roth’s involvement in drafting

an affidavit of a witness, we conclude that the evidence does not support

a claim that this resulted in any adverse employment action against any

of the plaintiffs. Accordingly, the plaintiffs may not rely on that

allegation against Roth to support this PHRA claim.

Roth aware that they believed he was involved 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,

as well as the suspension pending the LexisNexis investigation—at the

hands of Roth after they reported Halcovage’s and the County’s alleged

unlawful, discriminatory behavior. Thus, the motion for summary

judgment will be denied with respect to this 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, we conclude that there is an issue of fact regarding whether

Roth had supervisory authority over the plaintiffs. As we have stated,

Roth 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, and the

suspensions related to the LexisNexis investigation. Additionally, Roth

stated in his deposition that he did direct some work of the tax offices,

albeit not directly but through Doe 3. While the record indicates that he

may not have been as involved as some of the other named defendants in

certain adverse actions, such as issuing disciplinary write-ups to the

plaintiffs, we conclude that a jury could find that Roth 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

Roth was aware of the harassment and retaliation of which the plaintiffs

were complaining, and rather than intervene to remedy the harassment

and retaliation, took part in tangible adverse employment actions taken

against the plaintiffs. Additionally, if credited, the plaintiffs have

asserted that Roth himself subjected them to discriminatory treatment.

Accordingly, Roth’s motion for summary judgment on this claim will be

denied.

2. Equal Protection

Roth also challenges the plaintiffs’ Equal Protection claims against

him. He asserts that he was not responsible for some of the alleged

adverse actions taken against the plaintiffs, and that he had no

supervisory authority over his 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 Roth engaged in purposeful discrimination of the plaintiffs and

contributed to the hostile work environment. It is undisputed that Roth

was made aware of the plaintiffs’ complaints of sexual harassment and

retaliation. Roth conceded in his deposition that Doe 3 informed him of

Halcovage’s comments and behavior prior to Doe 1’s report in May of

2020. Further, the plaintiffs have asserted that Roth himself made

derogatory comments about women around the office. After the initial

investigation into Halcovage’s conduct, the plaintiffs continued to

complain of harassment and retaliation, and instead of assisting the

plaintiffs or attempting to intervene, Roth appears to have been involved

in at least some of the adverse actions that were taken against the

plaintiffs. Further, the plaintiffs have alleged that Roth 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 Roth, 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 Roth had a supervisory

role over the plaintiffs. Accordingly, if a jury concludes that Roth 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, Roth’s

motion for summary judgment on the plaintiffs’ Equal Protection claims

will be denied.

3. First Amendment Retaliation

Roth next challenges the plaintiffs’ First Amendment retaliation

claim, asserting that he did not have the requisite authority over

Halcovage, and that he did not acquiesce in the discriminatory conduct

of which the plaintiffs complain.

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 Roth. As discussed above, the plaintiffs have provided evidence

showing Roth’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 and suspensions 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, following the reports of harassment and

abuse, the plaintiffs were subjected to a variety of adverse employment

actions that Roth appears to have been involved with, although his

involvement may have been more limited than some of his codefendants.

Thus, the evidence, if credited by a jury, could show at a pattern of

antagonism by Roth following the plaintiffs’ protected activity.

Accordingly, summary judgment will be denied as to the plaintiffs’ First

Amendment claim.

4. Qualified Immunity

Finally, Roth asserts that he is entitled to qualified immunity from

the plaintiffs’ § 1983 claims. The doctrine of qualified immunity protects

government officials from liability for civil damages “insofar as their

conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

, 555 U.S. 223, 231 (2009). This doctrine “provides ample

protection to all but the plainly incompetent or those who knowingly

violate the law.” , 475 U.S. 335, 341 (1986). While

generally a question of law to be decided at the earliest possible stage, “a

genuine dispute of material fact on the issue of qualified immunity may

preclude summary judgment.” , 571 F.3d 318, 325-26 (3d

Cir. 2009).

Qualified immunity is an affirmative defense that must be

established by the official seeking immunity. , 750 F.3d

273, 288 (3d Cir. 2014) (citing , 615 F.3d 197, 223 (3d

Cir. 2010)). To determine whether an official is entitled qualified

immunity, a court must determine (1) whether the official violated a

constitutional right, and (2) whether that right was clearly established.

, 533 U.S. 194, 201 (2001); 555 U.S. at 236

(permitting federal courts to exercise discretion in deciding which of the

two prongs should be addressed first).

A right is clearly established if “every reasonable official would

have understood that what he is doing violates that right.”

, 577 U.S. 7, 11 (2015). To be clearly established, “existing precedent

must have placed the statutory or constitutional question beyond

debate.” (quoting , 563 U.S. 731, 741 (2011)).

Courts must not define the right “at a high level of generality.”

(quoting , 563 U.S. at 742, 131 S.Ct. 2074.) Rather, the inquiry

should focus on “whether the violative nature of particular conduct is

clearly established.” (quoting , 563 U.S. at 742). Ultimately,

“[t]he relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” ,

533 U.S. at 202. The plaintiff bears the initial burden of demonstrating

that the constitutional right at issue was clearly established at the time

of the claimed violation. , 468 U.S. 183, 197 (1984);

, 113 F.3d 396, 399 (3d Cir. 1997).

To determine whether a right is clearly established, the court may

look to cases from the Supreme Court, controlling circuit precedent, or “a

robust consensus of cases of persuasive authority” from other circuit

courts. , 974 F.3d 431, 449 (3d Cir. 2020)

(quoting , 877 F.3d

136, 142 (3d Cir. 2017)). Unpublished cases cannot establish a right

because they do not constitute binding authority. ,

975 F.3d 327, 340 (3d Cir. 2020). However, in rare cases, the conduct may

be clearly established from the obviously unlawful nature of the conduct

“even though existing precedent does not address similar circumstances.”

, 583 U.S. 48, 64 (2018) (citing

, 543 U.S. 194, 199 (2004)).

Here, we have concluded that the plaintiffs have set forth evidence

from which a jury could find that Roth violated the plaintiffs’

constitutional rights under the First and Fourteenth Amendments.

Further, we conclude that the plaintiffs’ rights to be free from retaliation

and harassment were clearly established at the time of the alleged

conduct in this matter. The plaintiffs have alleged that they reported

instances of sexual abuse and harassment and were subsequently

subjected to a hostile work environment and adverse employment actions

at the hands of the defendants, including Roth. The Third Circuit has

long held that “it is sufficiently clear that by allowing the harassment of

[the plaintiffs] to continue, and possibly even participating directly in

that harassment, a ‘reasonable official would understand that what he is

doing violates their rights.’” , 895 F.2d 1469,

1479-80 (3d Cir. 1990) (citations omitted);

, 971 F.3d 416, 430 (3d

Cir. 2020) (denying qualified immunity where the plaintiff alleged a First

Amendment retaliation claim).9

Accordingly, given that the plaintiffs have provided evidence from

which a jury could conclude that Roth violated their constitutional rights,

and finding that those rights were clearly established, we will deny

9 We note that even though qualified immunity is an affirmative defense,

the defendant has failed to provide any caselaw to support his argument

that the plaintiffs’ rights were not clearly established. ( Doc. 255 at

14-15); , 118 F. Supp. 3d 664, 679 (M.D. Pa. 2015)

(denying qualified immunity where “the defendants have failed to

demonstrate that the right was not clearly established”).

Defendant Roth’s motion for summary judgment on qualified immunity

grounds.

IV. Conclusion

For the foregoing reasons, Defendant Roth’s motion for summary

judgment (Doc. 243) will be DENIED.

An appropriate order follows.

Submitted this 14th day of March 2024.

Daryl F. Bloom

United States Magistrate Judge