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