Opinion

Doe v. Schuylkill County Courthouse

Court
District Court, M.D. Pennsylvania
Filed
Mar 7, 2024
Cited by
0 cases
Authority
More cited than 29.2%

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, Gary Bender.1 (Doc. 236). In this motion, Bender

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 facts and evidence to

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

resolution. (Docs. 250, 282, 300).2 After consideration, the motion will be

denied.

II. Background3

1 The individual defendants have all filed separate motions for summary

judgment (Docs. 236, 239, 240, 243), which will be addressed in separate

Memorandum Opinions.

2 Bender 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. 250, 259, 282, 293-94, 300).

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

Bender, 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. She

alleged that Defendant Halcovage subjected her to sexual abuse and

harassment from the beginning 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 Bender. Bender has

asserted, and the plaintiffs do not dispute, that Bender was unaware of

the sexual relationship between Doe 1 and Halcovage prior to Doe 1’s

report to her supervisor in May of 2020.

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, incessant

calls and text messages, and that Halcovage propositioned her for sex on

at least one occasion. As it relates to Defendant Bender, Bender contends

that he was unaware of any of these allegations prior to the plaintiffs

reporting Halcovage’s behavior in May of 2020.

However, 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 would also make derogatory remarks insinuating that

some of the female employees were not intelligent. He also made

comments about the how Doe 4 was eating freeze pops and told other

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. Defendant

Glenn Roth, the assistant solicitor for the county, was either present for

or was aware of these comments made by Halcovage. In fact, Doe 3

contends that Roth remarked to her that he needed to speak to Halcovage

about his behavior around the office. However, Roth never followed up or

spoke to Halcovage about it.

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

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

would 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. Does 3 and 4 repeatedly told Defendant Roth about

Halcovage’s behavior, but Roth never intervened or reported any of the

behavior to Human Resources. Any time Doe 3 or Doe 4 objected directly

to Halcovage’s comments, he would retort by stating that he knew what

he could get away with.

While Bender asserted in his deposition that he was unaware of

many of these instances of alleged harassment specific to the plaintiffs,

he did testify that he knew Halcovage to behave inappropriately in the

workplace. For example, he stated that on one occasion, a female

employee showed him a text message she had received from Halcovage

at 2:00 a.m., which he spoke to Halcovage about and informed him that

it was inappropriate. He also stated that his secretary was concerned

when she saw Doe 1 alone in Halcovage’s office with the door shut.

Bender testified that he went into Halcovage’s office at that time and

later spoke to Halcovage, stating that it was inappropriate to have the

door shut with a subordinate in the office. Bender further recounted

instances in which Halcovage would start rumors about himself dating

certain individuals. Bender discussed these comments with Doe 3,

stating his belief that one day, Halcovage would say something in front

of the wrong person. Bender also recounted an incident for which he was

present involving Halcovage making an inappropriate comment using a

rubber glove, which he reported to Debra Twigg, who at the time was the

HR director.

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, and Bender, who at that time 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 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.

Regarding Doe 4’s allegations, Halcovage denied ever making

comments about her 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 Halcovage 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. 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 as well. 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 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 scheduled the room for two hours.

After the hearing had concluded, but within the two hour 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 work from home. 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 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 back 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 if they chose to do

so.

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, the lack of

cabinet space and old computers taking up space. Given the plaintiffs’

concerns, Kutzler tried contacting a cleaning service but ultimately

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. Bender was copied on emails with

respect to these issues, and the plaintiffs assert that he 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 Heidi Zula started as the

County’s HR Director. 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 in the building. Additionally, Doe 3 received a call from Doe 2

that Halcovage was seen following 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. For his

part, Bender stated that he never wanted to combine the offices in the

first place, and that the decision was made by the commissioners.

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.

Ultimately, 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. On March 17, 2021, the

restructuring was voted on at the board of commissioners meeting, and

the commissioners voted 2 to 1 to transfer 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

already felt that Does 3 and 4 should be terminated, a sentiment that

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.

appeared to be, at least in part, based on his frustrations with their lack

of communication with him as their direct supervisor.

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 recommendation 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 initially 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 Bender, 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). Bender 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. 238).

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, Bender challenges the plaintiffs’ PHRA

retaliation and aiding and abetting, Equal Protection, and First

Amendment retaliation claims. (Doc. 238). However, after a careful

review of the record, we conclude that there are genuine issues of

material fact with respect to these claims against Bender. Accordingly,

the motion will be denied.

1. PHRA Retaliation and Aiding and Abetting

Bender 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 Bender. The evidence establishes that after the Doe plaintiffs

reported Halcovage’s conduct, Doe 1 and Doe 2 were hindered from doing

their jobs at home due to the County not providing them with proper

supplies. Bender was aware of these issues, and according to the

plaintiffs, failed to ensure that the plaintiffs had the ability to perform

their jobs from home. In fact, Kutzler stated in her deposition that she

had to remind Bender that the employees were lacking supplies, and that

when she received an email from Doe 3 regarding the STEB reports,

Bender instructed her not to answer the email, as it was not an HR issue.

Thereafter, Bender revoked Doe 1 and Doe 2’s work from home privileges,

and they were required to move into unsuitable offices in the 410

Building.

As it pertains to Does 3 and 4, they have asserted that they were

subjected to discipline after reporting Halcovage’s behavior, , write

ups, investigations, and suspensions, which they had never received prior

to reporting Halcovage’s conduct. Specifically, Does 3 and 4 suffered

demotions, including a reduction in pay, after the tax offices were

restructured, which they attribute to their reporting of Halcovage’s abuse

and harassment. Bender contends that he did not have the authority to

demote Does 3 and 4, as the restructuring was put to a vote by the county

commissioners. However, a jury could conclude, based on the evidence in

the record, that Bender was the moving force behind the restructure of

the tax offices. Following the issue with the delinquent STEB reports,

Bender directed Zula to look into the tax offices, which ultimately led to

the idea of restructuring the offices. He also conceded that at the time of

the restructuring, he had been frustrated with Doe 3’s lack of

communication with him as her supervisor.

Further, Does 3 and 4 have been indefinitely suspended from their

positions with the County. It is undisputed that Bender, as their

supervisor and as the County Administrator, suspended Does 3 and 4 in

September of 2021 pending the outcome of the LexisNexis investigation.

According to Zula, Bender was the person who directed her to reach out

to LexisNexis and obtain the plaintiffs’ search history going back to

January of 2020, rather than calling Doe 3 when it was discovered that

she had accessed the LexisNexis account while on leave. Bender also

twice prepared termination PARs for Does 3 and 4 regarding the

LexisNexis investigation. The Doe plaintiffs also assert that the

LexisNexis investigation never would have occurred if they did not report

Halcovage’s behavior, an assertion that is supported by Commissioner

Hess’s deposition testimony that he believed the County was looking for

reasons to suspend and/or terminate them. In fact, Bender conceded in

his deposition that by the spring of 2021, when Does 3 and 4 were issued

written reprimands for a separate issue and prior to the LexisNexis

investigation, he had already determined that Does 3 and 4 should be

terminated.

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 Bender

after they reported Halcovage’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, while Bender contends that he had no authority to hire or

fire the Doe plaintiffs, the undisputed facts show that as the County

Administrator, he was Doe 3 and Doe 4’s direct supervisor, as well as the

direct supervisor of the HR employees, including Zula and Kutzler. He

further conceded that he had supervisory authority over the employees

in the tax offices, which included Does 1 and 2.

“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.

While Bender argues that he had no authority to act against Halcovage,

the plaintiffs’ claims, in part, are based on Bender’s on the

plaintiffs’ requests for accommodations to remedy the harassment. These

inactions include but are not limited to failing to provide Does 1 and 2

with proper equipment to work from home so that they would not

encounter Halcovage, subsequently forcing Does 1 and 2 to work from the

410 Building even though the building was accessible to the public and

by Halcovage, and failing to respond to Doe 3 and Doe 4’s concerns

regarding Halcovage’s actions after the plaintiffs reported his

harassment. Thus, while Bender may not have had the authority to curb

Halcovage’s behavior directly, a reasonable juror could conclude that

Bender had the authority but failed to assist the plaintiffs in a way that

would remedy the hostile work environment of which they had informed

him. Accordingly, Bender’s motion for summary judgment on this claim

will be denied.

2. Equal Protection

Bender also appears to challenge 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.

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

or 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 hostile work environment claim, 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 Bender engaged in purposeful discrimination of the plaintiffs

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

Bender was made aware of the plaintiffs’ complaints of sexual

harassment as early as May of 2020. While Bender contends that he had

virtually no authority to discipline Halcovage, the plaintiffs have set

forth evidence indicating that Bender did have the authority and ability

to help remedy the discrimination in other ways but failed to do so. For

example, Bender revoked Doe 1 and Doe 2’s work from home privileges

despite knowing that these plaintiffs did not want to encounter

Halcovage at work. Additionally, although Bender was made aware of

several instances in which Halcovage had violated the restrictions placed

on him by the County, Bender seemingly ignored the plaintiffs’ concerns.

In fact, Bender admonished Doe 3 for permitting Does 1 and 2 to work

from home after Halcovage was found to have violated the County’s

restrictions and was alleged to have followed Doe 2 while she was doing

field work. The Doe plaintiffs contend that their work, as well as their

personal health, suffered greatly due, in part, to Bender’s and others’ lack

of support for their concerns of harassment and abuse.

Thus, we conclude that the plaintiffs have provided enough support

at this stage to show that they were subjected to intentional

discrimination by Bender, 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,

Bender had a supervisory role over the plaintiffs as the County

Administrator. Accordingly, 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, Bender’s motion for summary judgment on the plaintiffs’

Equal Protection claims will be denied.

3. First Amendment Retaliation

Finally, Bender appears to challenge the plaintiffs’ First

Amendment retaliation claim against him, asserting that he did not have

the requisite authority to engage in the alleged retaliatory acts,

specifically regarding the demotion of Does 3 and 4.

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 Bender. As discussed above, the plaintiffs have provided

evidence showing Bender’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 revoking Doe 1 and Doe

2’s work from home status and failing to provide them with protections

from Halcovage after they reported his abuse and harassment, demoting

Does 3 and 4 when the tax offices were restructured, and suspending

Does 3 and 4 indefinitely in September of 2021 following the LexisNexis

investigation. All these actions would be sufficient to deter a person of

ordinary firmness from exercising her rights.

Finally, we conclude that there is a casual 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, following the reports of harassment and abuse in May of 2020,

Doe 1 and Doe 2’s work from home privileges were revoked, and Does 3

and 4 were demoted, written up, and eventually suspended without pay

indefinitely. Thus, the evidence, if credited by a jury, shows at the very

least a pattern of antagonism by Bender 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 Bender’s motion for summary

judgment (Doc. 238) will be DENIED.

An appropriate order follows.

Submitted this 7th day of March 2024.

Daryl F. Bloom

United States Magistrate Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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