# SEBASTIANI v. WESTMORELAND COUNTY

> District Court, W.D. Pennsylvania · December 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10768092

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** December 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10768092

## How later opinions describe it (automated extraction)

- holding that an employer’s pattern of harassment and retaliation was not intentional infliction of emotional distress
- holding that the defendant company did not engage in outrageous behavior “when one of its employees warned [plaintiff] of a potential lawsuit and threatened to report her to [defendant’s] internal discipline department”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOANN SEBASTIANI, )
)
Plaintiff, ) Civil Action No. 21-1114
) Magistrate Judge Maureen P. Kelly
v. )
) Re: ECF No. 61
WESTMORELAND COUNTY, et al., )
)
Defendants. )

OPINION

KELLY, Magistrate Judge

Plaintiff JoAnn Sebastiani (“Sebastiani”) initiated this action against Defendants
Westmoreland County (the “County”), Sean Kertes (“Kertes”), Gina Cerilli Thrasher (“Cerilli
Thrasher”), and Doug Chew (“Chew”) (collectively, “Defendants”), alleging five claims arising
from her employment by the County. ECF No. 1.
Presently before the Court is a Motion for Summary Judgment filed by Defendants. ECF
No. 61. For the reasons that follow, the Motion for Summary Judgment will be granted in part
and denied in part.1
I. FACTUAL BACKGROUND
At all relevant times, Defendants Kertes, Cerilli Thrasher, and Chew were elected
Commissioners for Westmoreland County. ECF No. 63 ¶ 87. The Board of Commissioners of
Westmoreland County (“the Board of Commissioners”) directly supervises the County

1 Pursuant to 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of a United States
Magistrate Judge to conduct all proceedings in this case, including trial and entry of final judgment, with
direct review by the United States Court of Appeals for the Third Circuit if an appeal is filed. ECF Nos.
15 and 16.
department directors who are not elected, which includes the Elections Bureau.2 Id. ¶ 1. The
Board of Commissioners does not manage day-to-day operations of the Elections Bureau. Id. ¶¶
2-3.
The Board of Commissioners serves as the Board of Elections when it is not an election

year for a Commissioner seat. Id. ¶ 4. The Board of Commissioners supervises the Elections
Bureau, and the Board of Elections oversees the operation, review, and certification of the
elections. Id. ¶¶ 3, 5.
The Board of Commissioners also oversees the Human Resources (“HR”) Department,
but does not manage the day-to-day functions. Id. ¶ 6. Consequently, the Board of
Commissioners does not have much interaction with the HR Department, except for weekly
updates by the HR Director. Id. ¶ 8. The Commissioners do sign-off on employee terminations.
Id. ¶ 7.
Sebastiani was hired by the County in 2015. ECF No. 1 ¶ 8. She was employed by the
County when she suffered a work-related injury on November 14, 2018, including a concussion

and traumatic brain injury. ECF No. 63 ¶ 9. Consequently, she suffers from persistent post-
concussion symptoms including post-traumatic tinnitus, intermittent aphasia, headaches, anxiety,
insomnia, confusion, and dizziness. Id. ¶ 10. Sebastiani had been receiving workers’
compensation benefits since November 2018 as a result of her injury. Id. ¶ 15.3

2 Both parties use the terms “Elections Department,” “Department of Elections,” and “Elections Bureau”
interchangeably. See ECF Nos. 58, 63. For the purposes of this Opinion, the Court will use “Elections
Bureau.”

3 At all times relevant to this lawsuit, Sebastiani’s medical bills related to the 2018 workplace injury were
being paid through workers’ compensation benefits, but she was not receiving wages. ECF No. 63 ¶ 15.
The Director of Elections (“Elections Director”)4 is a nonpartisan position. Id. ¶ 88.
When interviewing candidates for the position, the Board of Commissioners made it clear that
they did not want someone who was active in politics. Id. ¶ 90. The partisan break down of the
Board of Commissioners in 2020 was two Republicans (Chew and Kertes) and one Democrat

(Cerilli Thrasher). Id. ¶ 87.
On Friday, August 7, 2020, the Commissioners approached Sebastiani about taking the
Elections Director position. Id. ¶ 77. The HR Director, Alexis Bevan (“Bevan”), called
Sebastiani on Wednesday, August 12, 2020 and offered her the position. Id. ¶ 79. Sebastiani
accepted and started in the Elections Director position on Monday, August 17, 2020. Id. ¶ 80.
Throughout the interview process, there was no concern that Sebastiani had not worked on
elections in her prior position, as that experience is difficult to find. Id. ¶¶ 92, 95-96. Chew did
not agree to hire Sebastiani because he did not think she was qualified. Id. ¶¶ 99-100.
Sebastiani alleges that on August 12, 2020, the same day that she accepted the position,
Kertes’ secretary, Francine Gibbon (“Gibbon”), called Sebastiani and informed her that it was

imperative that Sebastiani change her registered party affiliation from Democrat to Republican.
ECF No. 64-31 at 2. Sebastiani changed her political party based solely on the phone call from
Gibbon. ECF No. 63 at ¶ 82. Gibbon told Sebastiani to say she changed her political party
registration because she did not like the Democratic Vice-Presidential candidate, who was
African American. Id. ¶ 83. None of the three Commissioners personally told Sebastiani that she
had to be registered with a certain political party to be the Elections Director. Id. ¶ 84.
For the May 2021 primary election, the Commissioners supported Sebastiani in her role
as Elections Director by calling for an all-hands-on deck approach to assist the Elections Bureau

4 Both parties use the terms “Director of Elections,” “Elections Director,” and “Election Director”
interchangeably. See ECF Nos. 58, 63, 65. For the purposes of this Opinion, the Court will use “Elections
Director.”
during the election. Id. ¶ 122. Nevertheless, several issues occurred over the initial months of
Sebastiani’s tenure.
A Magisterial District Justice was left off the ballot in the May 2021 primary election. Id.
¶ 138. Sebastiani accepted responsibility for the omission and took steps to correct it. Id. ¶ 139.

She had received an order earlier in the year about redistricting, but the race was still missed on
the ballot. Id. ¶ 146. This resulted in the mail-in and absentee ballots having to be reissued, along
with a variety of other mitigating measures. Id. ¶¶ 147-150.
The County had to amend the certification in the May 2021 election, because there were
approximately 15 elections without a winner. Id. ¶ 152. At a Board of Elections meeting to pre-
certify election results, the Board of Elections was presented with a huge stack of papers that it
had not seen before. Id. ¶ 153. The Board of Elections pre-certified the election results. Id. ¶ 155.
However, when people started looking at the results, they realized they had to amend the
certification because it was not properly reported. Id. ¶ 155. Chew may have used an “f-word”
when discussing Sebastiani’s work at this time and called a large stack of write-in ballots a “pile

of shit.” ECF No. 64-28 at 33-34; ECF No. 64-30 at 20-21.
The County Solicitor received a call in 2021 because an election in Penn Township put a
constable race on the ballot for May 2021, when there was no constable race in Penn Township
that year. ECF No. 63 ¶ 160. Again, the ballot had to be fixed. Id. ¶ 162. The County had to
overnight ballots and set up additional drop boxes the weekend before the election. Id.
Throughout this time, the Elections Bureau had staffing issues, and the Board of
Elections was receiving internal and external complaints. Id. ¶¶ 164-165. The complaints
involved Sebastiani’s job performance, as well as internal infighting between staff members. Id.
¶¶ 166-169. There was an independent, external investigation performed regarding the Elections
Bureau by Attorney Gretchen Love. Id. ¶ 170. The results from the investigation demonstrated
that Sebastiani’s staff were actively working against her and deliberately delaying work. Id. ¶¶
172-173. Two employees were terminated or resigned as a result of the investigation and no
longer work for the Elections Bureau. Id. ¶ 174.

Sebastiani alleges that she was also subject to “near constant harassment” from
subordinates, the three Commissioners, and the County Solicitor. Id. ¶ 113. She testified that she
spoke to Cerilli Thrasher regarding the harassment. ECF No. 64-31 at 24.
On April 1, 2021, HR Director Bevan sent a letter to Sebastiani documenting the
County’s concerns about Sebastiani’s performance as the Elections Director. ECF No. 58 ¶ 2.
The letter alleged Sebastiani had a lack of planning when bringing issues to the Board of
Elections, as well as a lack of decision making. Id. ¶ 7. It also alleged many issues with
Sebastiani’s management of her department. Id. ¶ 8. The letter further alleged other issues,
including: not attending training related to the upcoming primary election, despite scheduling the
training with the third-party ballot service; lack of response to e-mails, phone calls and

messages; providing improper fee waivers to candidates; and providing incorrect nomination
petitions to candidates. Id. ¶ 9.
On April 6, 2021, Sebastiani provided a written response to Bevan’s April 1, 2021 letter.
Id. ¶ 10. She stated that she disagreed with the characterization and interpretation of the incidents
listed in the letter. Id.
Sebastiani testified that she applied for FMLA leave on June 5, 2021. ECF No. 64-31 at
12. Additionally, as of June 5, 2021 her worker’s compensation claim was still open. ECF No. 63
¶ 16. Sebastiani recalls that she requested some of her workers’ compensation benefits be
reinstated sometime in June 2021, but does not specify the date. ECF No. 64-31 at 20.
Bevan sent another letter to Sebastiani, dated June 8, 2021, which was presented to
Sebastiani in a meeting with HR on the same date. ECF No. 58 ¶ 11. The purpose of the letter
was to provide Sebastiani with an explanation of the evidence the County had obtained during its
investigation and to provide an opportunity for Sebastiani to offer any and all information by

June 11, 2021 that may cause the County to reconsider taking disciplinary action. Id. ¶ 13. The
issues included multiple errors related to the May 2021 primary including: mail-in and absentee
ballots; placing a constable race that did not exist on a ballot; failing to meet deadlines; and an
ongoing lack of response to e-mail, phone calls, and messages, among other issues. Id. ¶ 14. The
deadline for Sebastiani’s response was June 11, 2021. Id. However, Sebastiani was placed on
paid suspension as of June 8, 2021. ECF No. 64-8.
Sebastiani informed Bevan on June 10, 2021 that she was having medical issues and
could not respond to the June 8, 2021 letter in a timely manner. ECF No. 64-20. Bevan provided
Sebastiani with the contact information for FMLA assistance, but did not offer her an extension.
Id.

On June 11, 2021, Sebastiani responded to the June 8, 2021 letter in writing. ECF No. 58
¶ 15. Again, she generally disagreed with Bevan’s characterizations of her tenure as Elections
Director, including that all referenced ballot errors were promptly discovered and addressed. Id.
At some point, HR Director Bevan presented facts regarding Sebastiani’s job
performance to the Board of Commissioners. ECF No. 63 ¶ 232. There was a review of all of the
information gathered during the investigation about Sebastiani. Id. The decision to terminate
Sebastiani’s employment was a unanimous decision by the Board of Commissioners. Id. ¶¶ 222-
223.
Bevan wrote Sebastiani a letter dated June 15, 2021, reporting on the ongoing
investigation and informing Sebastiani that her response letters had not provided any additional
information to consider or to contradict the findings of the investigation. ECF No. 58 ¶ 16. The
letter also informed Sebastiani that her paid suspension was converted to an unpaid suspension

upon receipt of Sebastiani’s June 11, 2021 letter response. Id. ¶ 17. It reiterated that the County
had offered Sebastiani two other jobs during the June 8, 2021 meeting and that Sebastiani had
not yet responded to either job offer. Id. ¶ 18. The June 15, 2021 letter advised Sebastiani that if
she did not accept either of the jobs by June 18, 2021, her employment with the County would be
terminated. Id. ¶ 19.
Bevan advised Sebastiani of her termination effective June 18, 2021 in a letter dated June
22, 2021. ECF No. 58 ¶ 20.
II. PROCEDURAL HISTORY
Sebastiani initiated this action with the filing of a Complaint on August 23, 2021. ECF
No. 1. In the Complaint, she brings five causes of action against Defendants, which are

summarized in the below chart.
Count Claim Allegations
Defendants violated Sebastiani’s right to free speech under
the First Amendment by demanding that she change her
party affiliation in order to occupy the Elections Director
42 U.S.C. § 1983 –
position; retaliated against Sebastiani for resisting the
First Amendment
I violation of her First Amendment rights; and retaliated
Retaliation – Political
against Sebastiani because she refused to adopt
Affiliation
Defendants’ false proffered explanation for her switching
party affiliation. ECF No. 1 ¶¶ 109-114.

29 U.S.C. § 2601 et Defendants retaliated against Sebastiani for applying for
seq. – Family Medical Family Medical Leave by terminating her. ECF No. 1 ¶¶
II Leave Act (“FMLA”) 115-118.
Discrimination
Defendant created and disseminated a false and defamatory
impression concerning Sebastiani in connection with her
employment and termination to the media indicating that
42 U.S.C. § 1983 –
Sebastiani had been suspended and terminated because she
III Deprivation of Liberty
mishandled the Elections Bureau, thereby depriving
Interest
Sebastiani of her protected liberty interest in her reputation
without due process. ECF No. 1 ¶¶ 119-128.

Defendants displayed an animus against Sebastiani for her
Discrimination in filing a workers’ compensation claim by mocking and
Violation of Public criticizing her symptoms that arose from the injury she
IV Policy – Workers’ sustained and terminated Sebastiani’s employment shortly
Compensation after she moved to reinstate her workers’ compensation
Discrimination benefits. ECF No. 1 ¶¶ 129-131.

Defendants engaged in harassment of Sebastiani with a
Intentional Infliction tortious intent for the purpose of inflicting severe and acute
V
of Emotional Distress emotional distress. ECF No. 1 ¶¶ 120-127 [sic].

On December 8, 2021, Defendants filed an Answer. ECF No. 12.
The parties conducted fact discovery. The Court conducted a telephonic status conference
on December 4, 2023, with the participation of counsel for all parties. ECF No. 53. The Court
subsequently issued a scheduling order and set dates for the filing of a joint statement of
undisputed facts; motions for summary judgment; responses; and replies. ECF No. 54. The
scheduling order specified that any motion for summary judgment and response must comply
with Local Civil Rule 56. Id. ¶ 6.
The parties timely filed a Joint Concise Statement of Material Facts. ECF No. 58. The
parties then filed a Consent Motion to modify the Court’s Summary Judgment Scheduling Order
by Two Weeks, ECF No. 59, which the Court granted, ECF No. 60.
In accordance with the modified scheduling order, on March 6, 2024 Defendants timely
filed the pending Motion for Summary Judgment, Brief in Support, Concise Statement of
Material Facts, and an extensive Appendix of cited exhibits. ECF Nos. 61-64.
On April 4, 2024, Sebastiani filed a Brief in Response to Defendants’ Motions [sic] for
Summary Judgment. ECF No. 65. Sebastiani did not file a Responsive Concise Statement of
Material Facts in accordance with Local Civil Rule 56. She did attach four exhibits to the
Response. ECF Nos. 65-1 - 65-4.

On April 15, 2024, Defendants filed a Reply to Plaintiff’s Brief in Response to Motion
for Summary Judgment and an Appendix with one exhibit. ECF Nos. 66-67.
The Motion for Summary Judgment is ripe for consideration.
III. LOCAL CIVIL RULE 56
Local Civil Rule 56 requires a party opposing a motion for summary judgment to file a
response to a concise statement of material facts in which the nonmovant: (1) admits or denies
“whether each fact contained in the moving party’s Concise Statement is undisputed and/or
material”; (2) sets forth “the basis for the denial if any fact contained in the moving party’s
Concise Statement is not admitted in its entirety . . . with appropriate reference to the record”;
and (3) sets forth, “in separately numbered paragraphs any other allegedly material facts that are

allegedly at issue.” LCvR 56.C.1(a)-(c). In this case, this Court specifically instructed the parties
that compliance with Local Civil Rule 56 was required. ECF No. 54 ¶ 6. Yet, as asserted by
Defendants, Sebastiani failed to do so.
Courts in this District generally require “strict compliance” with Local Civil Rule 56.
Mattis v. Overmeyer, No. 16-306, 2019 WL 2542283, at *2 (W.D. Pa. June 20, 2019) (collecting
cases). When a party fails to comply with Local Civil Rule 56, “[a] [c]ourt [is] ‘entitled to deem
[Defendants’] statement of facts as admitted[.]’” Deforte v. Borough of Worthington, 364 F.
Supp. 3d 458, 461 n.3 (W.D. Pa. 2019) (quoting Smith v. Addy, 343 F. App’x 806, 808 (3d Cir.
2009)). See also Byron v. Columbia Gas of Pennsylvania, No. 21-1365, 2022 WL 17406052, at
*1 (W.D. Pa. Dec. 2, 2022), aff’d, No. 22-3408, 2023 WL 8663876 (3d Cir. Dec. 15, 2023);
Polansky v. Vail Homes, Inc., No. 13-296, 2016 WL 2643253, at *4 (W.D. Pa. May 10, 2016)
(citing Janokowski v. Demand, No. 06-0618, 2008 WL 1901347, at *1 (W.D. Pa. Apr. 25,
2008)) (defendant’s statement of material facts were deemed admitted for the purpose of

summary judgment because of the plaintiff’s violation of Local Rule 56.1(c)); GNC Franchising
LLC v. Kahn, No. 05-1341, 2008 WL 612749, at *1 (W.D. Pa. Mar. 3, 2008) (the facts set forth
in plaintiff’s statement of facts were deemed admitted by defendants based on defendants’
violation of Local Rule 56.1(E)); Ferace v. Hawley, No. 05-1259, 2007 WL 2823477, at *1
(W.D. Pa. Sept. 26, 2007) (citing Benko v. Portage Area Sch. Dist., No. 03-233J, 2006 WL
1698317 (W.D. Pa. June 19, 2006)).
Consistent with the prior holdings of this Court, as the result of Sebastiani’s failure to
respond as required by Local Civil Rule 56.C.1(a)-(c), all facts set forth in Defendants’ Concise
Statement of Material Facts and supported by evidence of record are deemed admitted.
Sebastiani did submit four additional exhibits with her Response Brief, ECF Nos. 65-1-

65-4. The Court will consider these exhibits in determining whether Sebastiani demonstrated that
there is a genuine dispute of material fact that would defeat Defendants’ Motion for Summary
Judgment. The Court also notes that, separate from the Concise Statement of Material Fact, the
Court still must independently assess the record.
Having reviewed and addressed the above procedural issue, the Court turns to consider
Defendants’ Motion for Summary Judgment.
IV. STANDARD OF REVIEW
Summary judgment is properly entered “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); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Under this standard

“the mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“[A] fact is ‘material’ where ‘its existence or nonexistence might impact the outcome of the suit
under the applicable substantive law.’” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d
Cir. 2019) (citations omitted). Further, “[a] dispute is ‘genuine’ if ‘a reasonable jury could return
a verdict for the nonmoving party.’” Clews v. Cnty. of Schuylkill, 12 F.4th 353, 358 (3d Cir.
2021) (quoting Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating to the court that the
undisputed evidence is not enough to support one or more essential elements of the non-moving

party’s claim. Celotex, 477 U.S. at 322; see also Conoshenti v. Pub. Serv. Elec. & Gas Co., 364
F.3d 135, 140 (3d Cir. 2004). “[W]hen the moving party has carried its burden under Rule 56(c),
its opponent must do more than simply show that there is some metaphysical doubt as to the
material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372,
380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)) (internal quotations omitted). In making this assessment, the court must view the facts in
the light most favorable to the nonmoving party and must draw all reasonable inferences, and
resolve all doubts in favor of the nonmoving party. Matreale v. New Jersey Dep’t of Mil. &
Veterans Affs., 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Philadelphia Bd. of
Educ., 248 F.3d 129, 130 (3d Cir. 2001). If the non-moving party “fails to make a showing
sufficient to establish the existence of an element essential to [the non-movant’s] case, and on
which [the non-movant] will bear the burden of proof at trial,” Rule 56 requires the entry of

summary judgment because such a failure “necessarily renders all other facts immaterial.”
Celotex, 477 U.S. at 322-23; Jakimas v. Hoffman La-Roche, Inc., 485 F.3d 770, 777 (3d Cir.
2007).
V. DISCUSSION
A. Count I: Section 1983 – First Amendment Retaliation/Political Affiliation
In order to sustain a claim of discrimination based on political affiliation in violation of
the First Amendment, a plaintiff must establish a prima facie case. See Galli v. NJ Meadowlands
Comm’n, 490 F.3d 265, 271 (3d Cir. 2007). The United States Court of Appeals for the Third
Circuit in Galli identified three requisite elements to assert such a claim. The plaintiff must
establish that she: (1) was employed at a public agency in a position that does not require

political affiliation; (2) was engaged in constitutionally protected conduct affiliated with a
political party; and (3) that her conduct was a substantial or motivating factor in the
government’s employment decision. Id. at 270-271; Goodman v. Pa. Tpk. Comm’n, 293 F.3d
655, 663 (3d Cir. 2002). “The First Amendment protects public employees not only from
politically motivated discharge, but also from promotion, transfer, recalls, and other hiring
decisions conditioned on political affiliation, unless the government can demonstrate that party
affiliation is a proper requirement for the position.” Galli, 490 F.3d at 270-271 (citing Rutan v.
Republican Party of Ill., 497 U.S. 62, 75 (1990)).
If a plaintiff can establish a prima facie case, the public employer may avoid a finding of
liability by proving that the same employment action would have been taken even in the absence
of the protected activity. See Galli, 490 F.3d at 271 (citing Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

1. Municipal Liability as to Westmoreland County
a. Monell liability
As to Sebastiani’s claim against the County, Sebastiani must proffer facts to establish
liability as set forth in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The United States
Supreme Court held in Monell that “Congress did not intend municipalities to be held liable
unless action pursuant to official municipal policy of some nature caused a constitutional tort.”
Id. at 691. A municipality cannot be held liable under Section 1983 on a respondeat superior
theory. Id.
A county government such as Westmoreland County is a “person” for purposes of
Section 1983 and can be liable only for its own misconduct. Id. at 692. To establish Section 1983

liability against a local government, a plaintiff must prove that a municipal “policy or custom” is
the “moving force” of the constitutional violation at issue. Id. at 694. Thus, to sustain a claim for
liability against the County, Sebastiani must specifically identify the policy or custom that
caused the constitutional violations. Id.; Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575,
583-84 (3d Cir. 2003); Batts v. Giorla, 550 F. App’x 110, 113 (3d Cir. 2013).
In addition, a “plaintiff must also allege that the policy or custom was the ‘proximate
cause’ of his injuries.” Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)
(citing Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996)). A plaintiff “may do so by
demonstrating an ‘affirmative link’ between the policy or custom and the particular
constitutional violation he alleges.” Id. (citing Bielevicz v. Dubinon, 915 F.2d 845, 850-51 (3d
Cir. 1990)).
Policy is made when a decisionmaker possessing final authority to establish
municipal policy with respect to the action issues an official proclamation, policy,
or edict. A course of conduct is considered to be a “custom” when, though not
authorized by law, such practices of state officials are so permanent and well
settled as to virtually constitute law.

Kniepp, 95 F.3d at 1212 (internal citations and brackets omitted). In other words, a custom is “an
act ‘that has not been formally approved by an appropriate decision maker but that is so
widespread as to have the force of law.’” Natale, 318 F.3d at 584 (quoting Board of County
Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997)). “Despite these requirements,” a
plaintiff need not “identify a responsible decision maker in his pleading,” nor “prove that the
custom had the [County’s] formal approval.” Estate of Roman, 914 F.3d at 798 (citing Bielevicz,
915 F.2d at 850-51 and Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986)).
Under either route to a Monell claim, a plaintiff must show that an official who has the
power to make policy is responsible for either the affirmative proclamation of a policy or
acquiescence in a well-settled custom. Watson v. Abington Township, 478 F.3d 144, 156 (3d
Cir. 2007) (citing Fletcher v. O’Donnell, 867 F.2d 791, 793-94 (3d Cir. 1989)).
In their Brief in Support of Motion for Summary Judgment, Defendants argue that
Sebastiani has not identified any specific policy or custom that was the “moving force” of the
constitutional violations that she alleges at Count I of her Complaint against the County. ECF
No. 62 at 7. Defendants also argue that there is simply no evidence of record that the County had
any practice or custom in place of only awarding non-partisan jobs based on an applicant’s
political affiliation or that it was such a widespread practice that it could be consider well-settled
custom. Id. Without such evidence, they argue that Sebastiani’s claim fails. Id.
Sebastiani responds that Defendants’ argument fails because it does not draw reasonable
inferences in favor of her position. ECF No. 65 at 5. The Board of Commissioners is the ultimate
decision maker with respect to County policy and election policy. Id. at 6. Therefore, a
reasonable inference can be drawn that the body with final policy authority communicated via

Gibbon, on behalf of the Republican majority of the Board of Commissioners, an edict that the
Elections Director should be registered with the Republican Party. Id.
In the Reply Brief, Defendants reassert the argument that Sebastiani fails to identify what
policy, practice, or custom was the driving force behind her termination. ECF No. 66 at 3.
Defendants also argue that Sebastiani only has her own testimony to support her allegations. Id.
At the outset, the Court notes that summary judgment may be based on the affidavits and
depositions of a party’s own witnesses. Miller v. Wenerowicz, 135 F. Supp. 3d 306, 310 (E.D.
Pa. 2015), aff’d, 648 Fed. App’x. 161 (3d Cir. 2016). It does not matter that it is Sebastiani’s
own testimony that supports her case. Further, as previously noted, the Court must view the
record in the light most favorable to Sebastiani, as the nonmoving party, and make reasonable

inferences in her favor. Miller, 135 F. Supp. 3d at 310.
Upon review, the record contains evidence to support Sebastiani’s claim. She testified
that Kertes’ secretary, Gibbon, told Sebastiani to change her political affiliation from Democrat
to Republican near or on the same day Sebastiani accepted the position of Elections Director.
ECF No. 64-31 at 2. Sebastiani felt pressured to do so and Gibbon was “pushy.” Id. at 2-3.
Sebastiani further testified that Gibbon would “not take no for an answer” and “had me scan
over, to prove that I did it.” Id. at 5. While Sebastiani also testified that none of the three
Commissioners directed her personally that she had to be registered with a certain political party
to be the Elections Director, it is undisputed that Gibbon was Kertes’ secretary. Id. at 6. Gibbon
celebrated Sebastiani’s change of political party via text and later texted Sebastiani that “I just
looked you and someone else up that we’re both still listed as a D last week.” ECF No. 64-26 at
1-2.
Defendants assert that Gibbon was not deposed, so any testimony regarding what

Gibbons said is hearsay. ECF No. 62 at 9 n. 1. However,
While evidence produced at the summary judgment stage must be “reduc[ible] to
admissible evidence” at trial, Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court has rejected the view that
“the nonmoving party must produce evidence in a form that would be admissible
at trial in order to avoid summary judgment.” Id. at 324, 106 S.Ct. 2548. . . .
Accordingly, “hearsay evidence produced in sworn testimony opposing summary
judgment may be considered if the out-of-court declarant could later present that
evidence through direct testimony, i.e. ‘in a form that would be admissible at
trial.’” Williams v. West Chester, 891 F.2d 458, 466 n. 12 (3d Cir.1989).

Webb v. Merck & Co., 450 F. Supp. 2d 582, 588 n. 5 (E.D. Pa. 2006). Further, as Sebastiani
points out, Gibbon, as personal secretary to Kertes, was an agent of both Kertes and the Board of
Commissioners, and had at least apparent authority to speak on their behalf. As such, her
statements may be construed as admissions by a party opponent and not hearsay. Fed. R. Evid.
801(d)(2).
Viewing the record in the light most favorable to Sebastiani, it is a reasonable inference
that Sebastiani saw Gibbon as acting as an agent or representative, directed by at least one
Commissioner. As stated, Monell liability may be imparted if the affirmative proclamation of a
policy was by an official who has the final policy making authority – in this case, a
Commissioner (Kertes at least). Therefore, the Court finds these allegations are sufficient to
present an issue of fact related to the County’s potential Monell liability.
b. Merits of the claim
The Court now turns to the merits of the political affiliation claim against the County. It
is undisputed that the Elections Director position is a nonpartisan position. ECF No. 63 ¶ 88. It is
also well established that political affiliation is protected activity. See Rutan, 497 U.S. at 62;

Welch v. Ciampa, 542 F.3d 927, 938 (1st Cir. 2008) (“the First Amendment also prohibits
government officials from taking adverse employment action against a non-policymaking
government employee based on the employee’s political affiliation”). Accordingly, the first and
second prongs of the Galli test are met in the instant case. The remaining inquiry – as to the third
prong of Galli – is whether Sebastiani has shown that her protected political affiliation was a
substantial or motivating factor for any employment action. Galli, 490 F.3d at 270-271
Sebastiani alleges in the Complaint that her right to free speech under the First
Amendment was violated in three ways: (1) “by demanding that she change her party affiliation
to occupy the Elections Director Position;” (2) by retaliating against Sebastiani “for resisting the
violation of her First Amendment rights;” and (3) by retaliating against Sebastiani “because she

refused to adopt Defendants’ false proffered explanation for her switching party affiliation – that
she had switched because she did not like that the Democratic Vice Presidential Candidate was
African American.” ECF No. 1 ¶¶ 110-112.
In considering whether Sebastiani can satisfy the third prong of Galli, in order to make
out a prima facie case of First Amendment political affiliation discrimination, the Court finds
that a reasonable jury could conclude that Defendants violated Sebastiani’s First Amendment
rights when they demanded that she (or sent a clear message to her of the need to) change her
party affiliation. Immediately after Sebastiani was offered the Elections Director position,
Gibbon – an agent or representative of a Commissioner, a policymaker of the County – pressured
Sebastiani to change her party affiliation. With the majority of the Board of Commissioners
being Republican, a reasonable jury could conclude that at least Kertes’ decision to hire
Sebastiani as Elections Director was motivated by this change.
With a prima facie case established, the burden then shifts to Defendants to demonstrate

the same employment action – hiring Sebastiani as Elections Director would – have been taken
even in the absence of the protected activity (if she had not changed her party registration). Galli,
490 F.3d at 271. The record reflects that Chew, a Republican, did not want to hire Sebastiani, a
Democrat. ECF No. 63 ¶¶ 99-100. Chew did not sign the action form to hire Sebastiani for the
Elections Director position. Id. ¶ 100. Also, as noted above, Kertes, through Gibbon,
communicated the requirement of a change in registration to Republican. Further, the record also
indicates that the Elections Director position is unique because it is difficult to find someone who
is qualified in that specific field. Id. ¶ 95-97. However, given the complete record in this case,
and making all reasonable inferences in Sebastiani’s favor, it is a reasonable inference that
Chew, after the vote to hire her, may have requested that Sebastiani change her party affiliation

as a condition for hiring her. The Court finds that Defendants have not shown by a
preponderance of the evidence that they would have hired Sebastiani for the Elections Direction
position without her changing her registration to Republican. See Stuby v. Bedford Cnty., No.
12-47, 2013 WL 5724065, at *12 (W.D. Pa. Oct. 21, 2013).
However, to the extent Sebastiani alleges a wrongful termination retaliation claim, as a
result of her political affiliation, Sebastiani has not established a prima facie claim. Sebastiani
was hired in August 2020 and was not terminated until June 2021. The record demonstrates that
she changed her political affiliation in August 2020. These events lack temporal proximity and
are not suggestive of retaliation. Moreover, the record does not contain any evidence of
retaliation as a result of Sebastiani “resisting” changing her political affiliation or for refusing to
adopt the proffered explanation.
Accordingly, as to the County, the Motion for Summary Judgment is denied as to her
First Amendment political affiliation claim regarding the demand that Sebastiani change her

political party at time of hire in August 2020, but is granted as to Sebastiani’s political affiliation
retaliation claim regarding her termination in June 2021.
2. Liability of Individual Defendants
In order to establish a Section 1983 claim for the violation of a constitutional right
against a person in their individual capacity at the summary judgment stage, a plaintiff must
adduce evidence that each individual defendant, acting under color of law, violated her
constitutional or statutory rights and caused the alleged injury. Fennell v. Penchishen, No. 19-
111, 2019 WL 1934877, at *3 (E.D. Pa. April 30, 2019) (citing Elmore v. Cleary, 399 F.3d 279,
281 (3d Cir. 2005)).
A supervisor can be held liable in his or her individual capacity under Section 1983 only

if: (1) he or she personally participated in the constitutional violation, or (2) there is a sufficient
causal connection between the supervisor’s wrongful conduct and the constitutional violation.
See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Thus, a defendant in a civil rights
action must have personal involvement in the alleged wrongs; liability cannot be predicated
solely on the operation of respondeat superior. Id. (citations omitted).
Any official claim against an individual defendant, in addition to a municipality, is
redundant. See Hafer v. Melo, 502 U.S. 21, 25 (1991).
In their Brief in Support of Motion for Summary Judgment, Defendants argue that any
official capacity claim against the individual Commissioners must be dismissed, because it
would be redundant. ECF No. 62 at 8. They also argue that no individual Commissioner had
personal involvement in Sebastiani’s political affiliation claim. Id. at 8-9.
Sebastiani responds that each of the individual Commissioners acted through Gibbon in a
scheme to have Sebastiani change her political affiliation at the time of hiring. ECF No. 65 at 4-
5.5 She does not address the specific issue of whether official capacity claims against the

individual Defendants could remain if her Monell claim against the County proceeds. Id. at 5-6.
Defendants reply that Gibbon was not deposed in this case, and no evidence was set forth
to “expose such a scheme.” ECF No. 66 at 2.
As an initial matter, Defendants are correct that Sebastiani cannot maintain both a Monell
claim against the County and official capacity claims against the individual Defendants. Hafer,
502 U.S. at 25. Accordingly, summary judgment is properly entered against Sebastiani on her
official capacity claims against Defendants Kertes, Cerilli Thrasher, and Chew.
As discussed in relation to the substance of Sebastiani’s First Amendment political
affiliation claim, a reasonable jury could conclude that the individual Defendants’ employment

decision to hire Sebastiani as Elections Director was at least motivated by Sebastiani changing
her party affiliation. It is also reasonable to infer that Gibbon was acting on behalf of Kertes, for
whom she was an assistant. Further, there is an issue of fact as to whether Gibbon was acting on
behalf of herself; just Kertes; Kertes and Chew as the Republican Commissioners; or all three
Commissioners. Therefore, the record reflects that there may be a sufficient causal connection
between Defendants’ decision to hire Sebastiani as Elections Director and the First Amendment
violation of demanding she change her political affiliation to that of the majority of the Board of
Commissioners.

5 This argument belies the fact that Cerilli Thrasher was the Democratic Commissioner.
However, as also previously discussed, the record is devoid of evidence linking
Sebastiani’s termination to the change in her political affiliation – whether or not she “resisted”
the change or refused to adopt the proffered explanation for the change, as she alleged. Ten
months passed between the change in Sebastiani’s political affiliation and her termination.

Additionally, there is no evidence of retaliation as a result of her “resisting” changing her
political affiliation or for refusing to adopt the proffered explanation.
Accordingly, as to the individual Defendants, the Motion for Summary Judgment is
properly granted on Sebastiani’s First Amendment political affiliation claim as to any official
capacity claims against Kertes, Cerilli Thrasher, and Chew, but denied as to individual capacity
claims against the individual Defendants. Further, the Motion for Summary Judgment as to
Kertes, Cerilli Thrasher, and Chew is properly granted as to Sebastiani’s political affiliation
retaliation claim regarding her termination, but denied as to her First Amendment political
affiliation claim regarding the demand that she change her political party at the time of hiring.
B. Count II: FMLA Discrimination

In Count II of the Complaint, Sebastiani asserts a claim of discrimination in violation of
the FMLA. ECF No. 1 ¶¶ 116-118. In three one-sentence paragraphs, she simply asserts that: she
applied for FMLA leave on June 8, 20216; Defendants retaliated against her for applying for
FMLA by terminating her on June 18, 20217; and she suffered financial and emotional hardship.
Id. Based on these averments, she is clearly asserting an FMLA retaliation claim.

6 While Sebastiani alleges in the Complaint that she applied for FMLA leave on June 8, 2021, ECF No. 1
¶ 116, the record indicates that she applied for leave on June 5, 2021, ECF No. 64-31 at 12.

7 While Sebastiani alleges in the Complaint that she was terminated on June 19, 2021, ECF No. 1 ¶ 117,
the record indicates that she was terminated on June 18, 2021, ECF No. 58 ¶ 20.
FMLA retaliation claims are controlled by the three-step burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Canada v. Samuel
Grossi & Sons, Inc., 49 F.4th 340, 346 (3d Cir. 2022).
Under the first step of that framework, a plaintiff must establish a prima facie
case by showing (1) that she engaged in protected employee activity; (2) adverse
action by the employer either after or contemporaneous with the employee's
protected activity; and (3) a causal connection between the employee’s protected
activity and the employer’s adverse action. Upon making these showings, the
employer then, under step two, has the burden of producing evidence that presents
a legitimate, non-retaliatory reason for having taken the adverse action. If the
employer meets this burden, the burden then shifts back to the plaintiff to
demonstrate that the employer’s proffered explanation was false, and that
retaliation was the real reason for the adverse employment action.

Canada, 49 F.4th at 346 (internal quotations and brackets omitted).
To demonstrate the third element of prima facie case – causation – a plaintiff must point
to evidence sufficient to create an inference that a causative link exists between his/her use of
FMLA leave and termination. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-81 (3d
Cir. 2000). When the “temporal proximity” between the protected activity and adverse action is
“unduly suggestive,” this “is sufficient standing alone to create an inference of causation and
defeat summary judgment.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232-33
(3d Cir. 2007). “Where the temporal proximity is not ‘unusually suggestive,’ we ask whether
‘the proffered evidence, looked at as a whole, may suffice to raise the inference.’” Id. at 232
(quoting Farrell, 206 F.3d at 280).
Once a prima facie case is established,
[t]he burden . . . shifts to [Defendants] to articulate one or more legitimate,
nondiscriminatory reasons for its employment decision. See McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. 1817; [Lichtenstein v. Univ. of Pittsburgh Med. Ctr.,
691 F.3d 294, 302 (3d Cir. 2012)]. This burden is one of production, not
persuasion, and requires an employer to submit evidence which, presumed true,
permits the conclusion that there was a legitimate and nondiscriminatory reason
for its adverse employment action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.
1994).

Duran v. Cnty. of Clinton, 380 F. Supp. 3d 440, 452 (M.D. Pa. 2019).
If the employer proffers a legitimate, non-discriminatory reason for the employment
action, the burden shifts back to plaintiff.
At the third step of the McDonnell Douglas paradigm, the plaintiff may defeat
summary judgment by identifying evidence “from which a factfinder could
reasonably either (1) disbelieve the employer's articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer’s action.” Lupyan v.
Corinthian Colls. Inc., 761 F.3d 314, 324 (3d Cir. 2014) (quoting Fuentes, 32 F.3d
at 764). A plaintiff must do more than simply claim a decision was wrong or
mistaken to discredit a proffered justification. Fuentes, 32 F.3d at 765. The
plaintiff “must demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in [the County’s] proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them ‘unworthy of
credence,’” Lichtenstein, 691 F.3d at 310 (quoting Fuentes, 32 F.3d at 765), “and
hence infer that the employer did not act for [the asserted] non-discriminatory
reasons,” Fuentes, 32 F.3d at 765 (alteration in original) (internal quotation marks
and citations omitted).

Id.
1. Prima Facie Case
In this case, Defendants concede that that Sebastiani has made out the first two requisite
elements of a prima facie case of FMLA retaliation because she engaged in protected activity by
invoking her right to FMLA leave and she suffered an adverse employment decision in her
termination by the County. ECF No. 62 at 13. However, Defendants deny that Sebastiani’s
termination was related to her use of FMLA. Id. They argue that the mere timing of Sebastiani’s
application for FMLA leave on June 5, 2021 and termination on June 18, 2021, without more, is
not enough to establish her FMLA retaliation claim. Id.; ECF No. 64-31 at 12. They also assert
that Sebastiani cannot show Defendants’ reasons for the termination of her employment were
pretextual. Id.
In opposing the Motion for Summary Judgment as to this claim, Sebastiani responds that
Defendants’ argument fails because the pertinent issue is not the date of her formal application
for FMLA leave, but rather the date on which the employer became aware of her need for FMLA
leave. ECF No. 65 at 7. Sebastiani states she had spoken to the HR Director about taking FMLA

leave, and her doctors’ opinion that she should take leave, several times in the six months prior
to her formal application in June 2021, which placed Defendants on notice of her medical need
for and intent to take FMLA leave. Id.
Defendants reply that Sebastiani fails to proffer any evidence of a causal connection
between her need for FMLA leave and her termination. ECF No. 66 at 3-4. They also note that
she fails to address the legitimate, non-retaliatory reasons for her termination and only points to
her own testimony to support this claim. Id. at 4.
Upon review, to establish a prima facie case of FMLA retaliation, Sebastiani must point
to evidence sufficient to create an inference that a causative connection exists between her
request for FMLA information and/or leave and her termination. Sebastiani testified that she

requested FMLA leave on June 5, 2021. ECF No. 64-21 at 12. The record reflects that on June 8,
2021, Sebastiani was placed on paid suspension. ECF No. 64-8. On June 10, 2021, Bevan, the
HR Director, provided Sebastiani with information regarding FMLA. ECF No. 64-20. On June
15, 2021, Sebastiani was informed her paid suspension was converted to an unpaid suspension,
and she was then terminated as of June 18, 2021. ECF No. 58 ¶¶ 17, 19. For purposes of
summary judgment, viewing the record and considering temporal proximity, Sebastiani has
adequately established a causal connection between her inquiry and request for FMLA leave and
her suspension and termination.
2. Legitimate, Nondiscriminatory Reason
With the burden shifted to Defendants, they have provided legitimate, non-retaliatory
reasons for Sebastiani’s termination, including, but not limited to, the extensive documented job
performance deficiencies outlined in their April 1, 2021, June 8, 2021, and June 15, 2021 letters,

ECF Nos. 64-1, 64-3, 64-5, and supporting deposition testimony.
3. Pretext
With Defendants having made the requisite showing as to their nondiscriminatory
reasons for termination, the burden shifts back to Sebastiani to show that these reasons were
pretextual and the real reason for her termination was retaliation for requesting FMLA leave. As
such, Sebastiani must now point to evidence from which the fact finder can reasonably find that
her request for FMLA leave was at a minimum a motivating cause of Defendants’ actions. Duran
v. Cnty. of Clinton, 380 F. Supp. 3d 440, 452 (M.D. Pa. 2019).
Upon review, the record contains several pieces of evidence that create factual issues
regarding Defendants’ proffered reasons for their termination of Sebastiani’s employment, such

that a reasonable factfinder could find the proffered reasons “unworthy of credence.” Fuentes, 32
F. 3d at 765.8
On March 17, 2021, Attorney Gretchen Love of the law firm of Campbell Durrant, P.C.
issued an Investigative Report to HR Director Bevan. ECF No. 64-21 In the report, she found
that Sebastiani inherited a dysfunctional office that was actively undermining her. Id. at 1. The
report also contained information regarding Sebastiani’s workplace injury indicating that her
employees may have looked down upon her due to related cognitive limitations. Id. at 8. In

8 The Court notes that Sebastiani cites pages 53, 76, and 175 in “ECF 64, Exh. EE” for the proposition
that Defendants had constructive notice of her need to take FMLA leave. ECF No. 65 at 7-8. However,
ECF No. 64-31, Exhibit EE does not contain the pages that Sebastiani cites. Therefore, this allegation is
not supported by the record.
general, the report absolved Sebastiani of certain wrongdoing. Id. Further, on May 7, 2021,
Chew texted Sebastiani telling her “not to worry about today. You haven’t been in this even 1
year. . . . This will get easier.” ECF No. 64-26 at 5. Nonetheless, Sebastiani received disciplinary
letters on April 1, 2021 and June 8, 2021. ECF Nos. 64-1, 64-3.

Construing the evidence in the light most favorable to Sebastiani, there are
inconsistencies in some of the reasons Defendants gave for her termination. Of note, Sebastiani
was simultaneously receiving disciplinary action while also possibly being exonerated of certain
mismanagement. ECF Nos. 64-1, 64-3, 64-5, 64-21.
Further, Sebastiani presents no direct evidence that any of the three Commissioners knew
about her request for FMLA leave, as of the date of her termination. However, Sebastiani
reasonably assumes that HR Director Bevan would have communicated everything with them,
including her request for FMLA leave. ECF 64-31 at 14; ECF No. 63 ¶ 232. The record
demonstrates that Bevan did, in fact, meet with the Commissioners without Sebastiani, though
there is no specific date regarding that meeting in the record. ECF No. 63 ¶ 8; ECF No. 64-32 at

2. In sum, Sebastiani has raised a factual issue, albeit barely, regarding the true reason for her
termination vis-a-vis her request for FMLA leave on June 5, 2021. ECF No. 64-31 at 151.
Accordingly, the Motion for Summary Judgment is denied as to Sebastiani’s FMLA
retaliation claim.
C. Count III: Section 1983 – Deprivation of Liberty Interest
It is well established that “reputation alone is not an interest protected by the Due Process
Clause.” Versarge v. Township of Clinton, New Jersey, 984 F.2d 1359, 1371 (3d Cir. 1993)
(citing Paul v. Davis, 424 U.S. 693, 701-712 (1976)) (emphasis added). “Rather, to make out a
due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a
stigma to his reputation plus deprivation of some additional right or interest.” Hill v. Borough of
Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) citing Paul, 424 U.S. at 701. This has been come to
be known as the “stigma plus” test. See Graham v. City of Philadelphia, 402 F.3d 139 (3d Cir.
2005). “The creation and dissemination of a false and defamatory impression is the ‘stigma,’ and

the termination is the ‘plus.’ When such a deprivation occurs, the employee is entitled to a
nameclearing hearing.” Hill, 455 F.3d at 236. A plaintiff must also allege that she was deprived
of an individual interest that is encompassed within the Fourteenth Amendment’s protection of
life, liberty, or property and that the procedures available to her did not provide her with due
process of law. Id. at 233-34.
Satisfying the stigma component requires the plaintiff establish the purportedly
stigmatizing statement was: (1) published, (2) substantially and materially false, and (3)
infringed upon the “reputation, honor, or integrity” of the employee. See Id. at 236; Brown v.
Montgomery County, 470 F. App’x 87, 91 (3d Cir. 2012) (nonprecedential) (citing Ersek v.
Township of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996)).

In their Brief in Support of Motion for Summary Judgment, Defendants argue that
Sebastiani’s deprivation of liberty claim fails for five reasons. ECF No. 62 at 17. First,
Defendants gave Sebastiani several due process opportunities to clear her name. Id. Second, no
charges against Sebastiani have been proven false. Id. Third, no Defendant publicly disseminated
any false statements connected to Sebastiani’s employment or termination. Id. Fourth, Sebastiani
has not produced any news article or media statement with false information. Id. Finally,
Sebastiani has not established that she has suffered any damages as a result of the alleged stigma.
Id. at 18.
Sebastiani responds by arguing that the June 9, 2021 newspaper article regarding her
suspension due to the May 2021 primary election issues “created the impression that Plaintiff
was suspended for misconduct.” ECF No. 65 at 9. In addition, she asserts that the due process
hearings concerning her termination did not constitute a “nameclearing hearing.” Id. Sebastiani

also asserts she has produced evidence of damages beyond her inability to find work in her
chosen field. Id.
In their Reply, Defendants correctly point out that the news article Sebastiani attached to
her Response Brief makes no statement as to the reason she was suspended. ECF No. 66 at 4.
Defendants also reiterate their argument that Sebastiani has not demonstrated damages. Id.
Upon careful review of the record, including the four news articles contained in ECF
Nos. 64-14, 64-18, and 65-2, the Court has not identified any false or defamatory statements
regarding Sebastiani. The two articles in ECF No. 64-14 discuss the issues regarding the
incorrect mail-in ballots, which omitted an electoral race. The first article, “Incorrect ballots
mailed to some Mt. Pleasant voters, Westmoreland County says,” does not name Sebastiani or

blame anyone in the Elections Bureau. Id. at 1-2. In the second article, “Westmoreland officials
seek answers for Mt. Pleasant Township ballot error,” Sebastiani takes responsibility for the
incorrect ballots. Id. at 3. It does not contain any information regarding Sebastiani that she
herself does not provide. The article at ECF No. 64-18, “Westmoreland primary results receive
preliminary certification,” states only factual issues regarding the posting of election results to
the county website and does not connect those issues to Sebastiani’s conduct. Even Plaintiff’s
exhibit, ECF No. 65-2, “Rookie Westmoreland County election director suspended with pay,”
states that “No reason was given for [Sebastiani’s] suspension,” and “Commissioners have never
publicly blamed Sebastiani for any of the missteps or for staff departures.” Id. at 2. That same
article also notes that no Commissioner provided any type of statement regarding Sebastiani. Id.
It also states that Sebastiani herself declined to comment. Id.
Sebastiani did testify in her deposition that the Commissioners “said, in the paper that . . .
there were mistakes being made that affected the elections. . . .” ECF No. 64-31 at 21. However,

there are no articles in the record that defame Sebastiani, because, as the record reflects, mistakes
were being made in the Elections Bureau, including incorrect ballots and delays in posting the
election results.
Without a “stigma” – the creation and public dissemination of a false and defamatory
impression – Sebastiani’s deprivation of liberty claim fails as a matter of law. See Taylor v.
Derry Twp. Sch. Dist., No. 20-1363, 2022 WL 80479, at *5 (M.D. Pa. Jan. 7, 2022). There is no
evidence in the record that any Defendant created or disseminated false statements regarding
Sebastiani.
Accordingly, the Motion for Summary Judgment is properly granted as to Sebastiani’s
deprivation of liberty interest claim in Count III.

D. Count IV: Workers’ Compensation Discrimination
In Count IV of the Complaint, Sebastiani asserts a pendant state law claim of workers’
compensation discrimination and retaliation in two paragraphs, each consisting of a single
sentence. ECF No. 1 ¶¶ 130-131. Specifically, she claims that Defendants displayed animus
against her by mocking and criticizing symptoms from a 2018 workplace injury. Id. Also,
Sebastiani complains that after she sought to reinstate her workers compensation wage benefits
in June 2021, she was terminated. Id.
In support of their Motion for Summary Judgment, Defendants argue that Sebastiani
presented no evidence to support her claim that Defendants violated public policy by displaying
an animus against her for filing a workers’ compensation claim by mocking and criticizing her
symptoms that arose from the injury she sustained. ECF No. 62 at 18-19. They also argue that,
similar to her FMLA claim, Sebastiani’s termination for legitimate, nondiscriminatory reasons
was not pretextual. Id. at 19. Further, Sebastiani’s receipt of workers’ compensation benefits

(medical bills) was ongoing, so it is insincere for Sebastiani to claim that the County suddenly
wanted to terminate her employment based on her request to reinstate the wage portion of those
benefits. Id. at 19-20.
Sebastiani responds that Defendants’ arguments fail because they do not resolve factual
disputes in favor of the non-moving party, fail to draw reasonable inferences from the record,
and misstate her theory of the case. ECF No. 65 at 9-11. She implies that the Commissioners
were aware of her workers’ compensation claim because of her “observable symptoms and
frequent doctors appointments.” Id. at 10. She otherwise incorporates her arguments in
opposition to summary judgment on the FMLA claim. Id.
1. Retaliation

At the outset of consideration of this claim, it must be noted that:
Pennsylvania courts recognize a public policy exception to at-will employment
when an employee is terminated by his employer in retaliation for filing a
Workers’ Compensation claim against the employer. Shick v. Shirey, 552 Pa. 590,
716 A.2d 1231 (Pa. 1998). In the Shick case, the plaintiff filed his workers’
compensation claim after suffering an injury at work, and he received workers’
compensation during his recovery. Upon recovery from the injury, the plaintiff
attempted to return to work for the same employer but the employer refused to re-
hire him allegedly because of his workers’ compensation claim. Id. at 593, 716
A.2d 1231.

“The Workers Compensation Act (the “Act”) strikes a balance between the
employer and the employee in that it restricts the remedies available to an
employee for injuries sustained in the course of employment and closes to the
employee any recourse against the employer at common law for negligence.”
Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 412 A.2d 1094
(1980). The Pennsylvania Supreme Court noted that the “historical balance would
be disrupted if the employer could terminate an employee for filing a workers’
compensation claim.” Shick, 552 Pa. 590, 603, 716 A.2d 1231. “If employers are
permitted to penalize employees for filing workmen’s compensation claims, a
most important public policy will be undermined. The fear of being discharged
would have a deleterious effect on the exercise of a statutory right.” Shick, 552
Pa. 590, 604, 716 A.2d 1231 (quoting Frampton v. Central Indiana Gas Co., 260
Ind. 249, 297 N.E.2d 425 (1973)).

Dickerson v. Insource Performance Sol., 96 F. Supp. 3d 460, 463 (M.D. Pa. 2015).
A workers’ compensation retaliation claim is analyzed under the standards employed to
adjudicate Title VII retaliatory discharge claims. See, e.g., Kieffer v. CPR Restoration &
Cleaning Serv., LLC, 200 F. Supp. 3d 520, 539 (E.D. Pa. 2016). Accordingly, an employee must
establish that: (1) she engaged in protected activity; (2) she suffered an adverse employment
action either after or contemporaneous with the protected activity; and (3) a causal connection
exists between the protected activity and the employer’s adverse action. Id. (citing Shellenberger
v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003)); Muhammad v. Matrix Med.
Network, No. 20-2244, 2021 WL 4399649, at *5 (E.D. Pa. Sept. 27, 2021).
If the employee is able to show these elements, the burden shifts to the employer
to articulate a legitimate, non-discriminatory reason for its action. Id. If the
employer satisfies this burden, the burden shifts back to the employee to prove
that the employer’s reason is pretextual by discrediting the proffered reason or
adducing evidence to demonstrate that retaliatory animus was a motivating factor
in the employer's decision. See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.
1994).

Smith v. R.R. Donnelley & Sons Co., No. 10-1417, 2011 WL 4346340, at *3 (E.D. Pa. Sept. 16,
2011).
a. Prima facie case
Upon review, Sebastiani’s worker’s compensation claim had been ongoing since
November 2018, and her medical benefits and bills were still being paid, but she was not
receiving the wages. ECF No. 64-31 at 8-9. At some point in June 2021, she applied for her
workers’ compensation wage benefits to be reinstated. Id. at 20. As previously noted, on June 8,
2021, Sebastiani was placed on paid suspension. ECF No. 64-8. On June 15, 2021, Sebastiani
was informed her paid suspension was converted to an unpaid suspension, and she was
terminated as of June 18, 2021. ECF No. 58 ¶¶ 17, 19.

It is Sebastiani’s burden to establish a prima facie case of retaliation. Smith, 2011 WL
4346340, at *3. The Third Circuit recently noted that “temporal proximity is not a necessary
condition of a prima facie causation showing” if there is other evidence to support causation.
LaFiandra v. Accenture, et al., No. 23-3050, slip op. at 8-9 (3d Cir. Dec. 16, 2024).
Here, however, temporal proximity is apparent. In her deposition, Sebastiani testified that
she applied for the workers’ compensation (wage) benefits at or around the same time as she
applied for FMLA leave. ECF No. 64-31 at 20. The best date she could provide for her workers’
compensation application was a “guesstimate” of June 2021. Id. The record reflects that
Sebastiani applied for FMLA leave on June 5, 2021. ECF No. 64-21 at 12. With that context, it is
a reasonable inference that Sebastiani requested workers’ compensation wage benefits at or

around June 5, 2021, prior to her paid suspension on June 8, 2021. Construing the facts in the
light most favorable to Sebastiani, the Court finds that this is sufficient to make out a prima facie
case of workers’ compensation retaliation.
b. Legitimate, nondiscriminatory reason
Having made out a prima facie case, the burden now shifts to Defendants to “articulate a
legitimate, non-discriminatory reason for its action.” Smith, 2011 WL 4346340, at *3. As
discussed in Section V.B.2, “Count II: FMLA Discrimination, Legitimate, Nondiscriminatory
Reason,” Defendants have provided legitimate, non-retaliatory reasons for Sebastiani’s
termination, with the extensive job performance deficiencies outlined in their April 1, 2021, June
8, 2021, and June 15, 2021 letters, ECF Nos. 64-1, 64-3, 64-5, and supporting deposition
testimony.
c. Pretext
With Defendants demonstrating a legitimate, nondiscriminatory reason for Sebastiani’s

termination, the burden shifts back to her to discredit Defendants’ proffered explanation for her
termination. Smith, 2011 WL 4346340, at *3. Because the factors and evidence surrounding
Sebastiani’s termination are the same as those articulated in the Court’s analysis of her FMLA
retaliation claim, the Court’s discussion in Section V.B.3, “Count II: FMLA Discrimination,
Pretext,” is hereby incorporated by reference. Accordingly, Plaintiff has established a question of
fact regarding the true reason for her termination as related to her request to reinstate her
workers’ compensation wage benefits in June 2021, and summary judgment should be denied as
to this retaliation claim. ECF No. 64-31 at 20.
2. Discrimination
The Court now turns to the second part of Sebastiani’s workers’ compensation

discrimination claim: whether she was subjected to animus/harassment by Defendants mocking
and criticizing her symptoms that arose as a result of a 2018 workplace injury with the County.
At the outset, the Court notes that Sebastiani fails to articulate any applicable legal
standards to support this claim in the Complaint or her Brief in Response to Defendants’ Motions
[sic], nor does she cite any cases regarding the elements of her alleged workers’ compensation
discrimination/harassment claim. ECF Nos. 1, 58, and 65. Defendants’ Brief in Support of their
Motion for Summary Judgment and Reply fail to address this deficiency. ECF Nos. 61-67. Of
note, there is no evidence of record that Sebastiani filed any state or federal administrative
charges of discrimination.
“[S]ummary judgment is essentially ‘put up or shut up’ time for the non-moving party.”
NVR, Inc. v. Majestic Hills, LLC, 670 F. Supp. 3d 206, 214 (W.D. Pa. 2023), reconsideration
denied, No. 18-1335, 2023 WL 3726895 (W.D. Pa. May 30, 2023) (quoting Berckeley Inv. Grp.,
Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)). “If the non-moving party ‘fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden at trial,’ summary judgment is warranted.” Robinson v.
Consol Pennsylvania Coal Co. LLC, 425 F. Supp. 3d 433, 441 (W.D. Pa. 2019) (quoting
Celotex, 477 U.S. at 324 (1986)).
At this late stage of the litigation, Sebastiani has failed to articulate any statutory or
common law basis for this alleged cause of action. ECF Nos. 1 and 65. In short, she has not “put
up” a sufficient legal basis to support her claim. Without any foundation in law for Sebastiani’s
workers’ compensation discrimination/harassment claim, the Motion for Summary Judgment is
properly granted as to this portion of Sebastiani’s claim.
Accordingly, the Motion for Summary Judgment is denied as to Sebastiani’s workers’

compensation retaliation claim regarding her termination. However, the Motion for Summary
Judgment is granted as to Sebastiani’s workers’ compensation discrimination claim regarding
any animus/harassment she experienced as a result of her workers’ compensation claim.
E. Count V: Intentional Infliction of Emotional Distress
In Count V of the Complaint, Sebastiani asserts a pendant state claim of intentional
infliction of emotional distress. ECF No. 1 ¶¶ 120-127. Sebastiani claims that Defendants were
aware of her heightened sensitivity due to symptoms arising from her concussion in 2018, and
engaged in harassment with the tortious intent of inflicting severe and acute emotional distress
on her. Id. ¶ 121. Consequently, Sebastiani suffered severe emotional distress. Id. ¶ 122.
To prove a claim of intentional infliction of emotional distress, the following elements
must be established:
(1) the conduct must be extreme and outrageous;
(2) it must be intentional or reckless;
(3) it must cause emotional distress; and
(4) that distress must be severe.

Hooten v. Penna. College of Optometry, 601 F.Supp. 1151, 1154 (E.D. Pa.1984) (citing Chuy v.
Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979)).
A plaintiff must demonstrate conduct by the defendant of “an extreme and outrageous
type.” Sloan v. United States, 603 F. Supp. 2d 798, 806 (E.D. Pa. 2009). The Third Circuit has
held that it is extremely rare to find conduct in the employment context which can rise to the
level outrageousness necessary to provide a basis for recovery under intentional infliction of
emotional distress. Id. at 807.
In the Motion for Summary Judgment, Defendants argue that Sebastiani’s intentional
infliction of emotional distress claim must be dismissed, because her allegations do not rise to
the level of egregiousness required to sustain a claim for intentional infliction of emotional
distress. ECF No. 62 at 21. Without sufficiently outrageous conduct, Sebastiani’s claim cannot
survive. Id.
Sebastiani responds that the facts support the inference that Defendants were aware of her
fragile emotional state and intentionally pursued a campaign of harassment connected to an
animus against that fragile emotional state. ECF No. 65 at 11. She argues that this meets the
threshold of the behavior necessary for a claim of intentional infliction of emotional distress. Id.
The standard for conduct to rise to a claim of intentional infliction of emotion distress is
quite high. A plaintiff must demonstrate that the defendant’s conduct was “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized society.” Cox v. Keystone Carbon
Co., 861 F.2d 390, 395 (3d Cir. 1988) (internal quotation marks and citation omitted).
“Pennsylvania courts have been chary to declare conduct ‘outrageous’ so as to permit recovery . .
. .” Cheney v. Daily News L.P., 641 F. App’x 197, 200 (3d Cir. 2016), on reh’g, 654 F. App’x

578 (3d Cir. 2016) (internal citations omitted). “Pennsylvania courts have found extreme and
outrageous conduct only in the most egregious of situations, such as mishandling of a corpse,
reckless diagnosis of a fatal disease, and having sexual contact with young children.” Id. (citing
Salerno v. Phila. Newspapers, Inc., 546 A.2d 1168, 1172 (Pa. Super. 1988) (collecting cases)).
Hare v. H&R Indus., Inc., 67 F. App’x 114 (3d Cir. 2003), which Sebastiani cited in
support of her claim, is one such case that reaches that high standard. In Hare, the female
plaintiff was subject to an ongoing campaign of sexual harassment at her place of work. Id. at
116-118. Over the course of 20 months, plaintiff was groped by multiple coworkers; was called
demeaning names; experienced unwanted discussion about her body and sexuality; shown
pornography by her supervisor; and was the subject of an unfounded rumor that she was having

an affair. Id. at 116-117.
Not only did [plaintiff’s] supervisors acquiesce in the harassment, they were
directly responsible for much of the harassment. Furthermore, not only did
[defendant employer] allow this atmosphere of ongoing and extreme hostile work
environment to continue to exist, it actually encouraged it. For example, instead
of remedying the situation, [plaintiff’s] supervisor told [plaintiff] to “give back.”

Id. at 121. Plaintiff was terminated from her position and attempted suicide twice as a result of
her workplace harassment. Id. at 118. The Third Circuit affirmed the District Court’s finding that
plaintiff suffered emotional damages intentionally inflicted by her employer. Id. at 121.
In the instant case, Sebastiani alleges Defendants verbally harassed her. This behavior
does not rise to the level of necessary egregiousness or outrageousness to state a claim of
intentional infliction of emotion distress. If true, Defendants’ conduct is improper, but it is not so
extreme that it “go[es] beyond all possible bounds of decency.” Cox, 861 F.2d at 395. See, e.g.,
Robinson v. Nat’l R.R. Passenger Corp, 821 F. App’x 97, 102 (3d Cir. 2020) (holding that the
defendant company did not engage in outrageous behavior “by scapegoating [plaintiff] for the

April 3, 2016 collision and by manipulating the disciplinary proceedings against him.”); Remp v.
Alcon Lab’ys, Inc., 701 F. App’x 103, 108 (3d Cir. 2017) (holding that the defendant company
did not engage in outrageous behavior “when one of its employees warned [plaintiff] of a
potential lawsuit and threatened to report her to [defendant’s] internal discipline department”);
Hill v. City Of Philadelphia, 331 F. App’x 138, 140 (3d Cir. 2009) (holding that an employer’s
pattern of harassment and retaliation was not intentional infliction of emotional distress).
Accordingly, the Motion for Summary Judgment is properly granted as to Sebastiani’s
intentional infliction of emotional distress claim.
VI. CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment filed on behalf of

Defendants Westmoreland County, Sean Kertes, Gina Cerilli Thrasher, and Doug Chew, ECF
No. 61, is properly granted in part and denied in part as follows.
The Motion for Summary Judgment is granted as to:
• All official capacity claims against Defendants Kertes, Cerilli Thrasher, and
Chew;

• Count I, in part, as to the First Amendment political affiliation retaliation claim
regarding Sebastiani’s termination;

• Count III, in entirety, as to the deprivation of liberty interest claim;

• Count IV, in part, as to the workers’ compensation discrimination/harassment
claim; and

• Count V, in entirety, as to the intentional infliction of emotional distress claim.
The Motion for Summary Judgment is denied as to:
e Count I, in part, as to the First Amendment political affiliation claim regarding the
demand that Sebastiani change her political party registration at the time of hiring;
e Count II, in entirety, as to the FMLA retaliation claim; and

e Count IV, in part, as to the workers’ compensation retaliation claim regarding
Sebastiani’s termination.
An appropriate order follows.

#} /)
Dated: December X{/, 2024 BY THE COURT:

a, ON A
fo Wy ( . i fe - A x 4a
MAUREEN P: KELLY mY
UNITED STATES MAGISTRATE JUDGE

ce: All counsel of record by Notice of Electronic Filing

38

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10768092. Public record. Not legal advice.