ALLEN v. STATE CORRECTIONAL INSTITUTION AT SOMERSET DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANGELA ALLEN, )

)

Plaintiff, )

)

v. ) Civil No. 3:23-cv-00262

) Judge Stephanie L. Haines

STATE CORRECTIONAL INSTITUTION )

AT SOMERSET DEPARTMENT OF )

CORRECTIONS, )

)

Defendant. )

Opinion

Plaintiff Angela Allen (“Allen”) commenced this action on October 19, 2023, filing a four

count Complaint, ECF No. 1, against Defendant State Correctional Institution at Somerset

Department of Corrections (“SCI Somerset”).' Therein, Allen raises claims of sex discrimination

(“Count I’), hostile work environment (“Count II’), and retaliation (“Count III”) under Title VI

of the Civil Rights Act of 1964 (“Title VII’), 42 U.S.C. § 2000e, ef seg., and the Pennsylvania

Human Relations Act (‘PHRA”), 43 P.S. §§ 951-963, in addition to a claim of wrongful

termination in violation of public policy (‘Count IV”). ECF No. 1.

On January 18, 2024, after the Court issued its Order, ECF No. 8, granting SCI Somerset’s

Motion for Extension of Time to File an Answer, ECF No. 7, SCI Somerset filed a Motion to

Dismiss Allen’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), ECF No. 9,

alongside an accompanying Brief in Support. ECF No. 10. Therein, SCI Somerset contends that

Allen’s claims are barred by issue preclusion? because Allen previously litigated these claims

Allen filed a timely Complaint within 90 days of receiving a Right to Sue Letter from the EEOC. ECF No. 1-2.

2 While “[t]he doctrine describing the effect of former adjudications on subsequent actions has a number of aspects,

and is referred to by a variety of terms,” Burlington Northern R.R. Co. v. Hyundai Merchant Marine Co., LTD., 63

“4

before the Pennsylvania Commonwealth Court, a state court of record. ECF No. 10, pp. 1-2. On

March 17, 2024, after the Court issued its Order, ECF No. 14, granting Allen’s Motion to Continue,

ECF No. 12, Allen filed a Brief in Opposition to the Motion to Dismiss, ECF No. 14, to which SCI

Somerset filed a Reply on March 25, 2024. ECF No. 12. The matter is fully briefed and ripe for

disposition.

For the reasons set forth below, the Court will GRANT in part and DENY in part SCI

Somerset’s Motion to Dismiss. ECF No. 9.

I. Factual Background?

Allen was hired as a correctional officer at SCI Somerset on or about October 10, 2020.

ECF No. 1, § 8. Allen sets forth that while her “male coworkers did not respect her as a security

officer” throughout the course of her employment, ECF No. 1, § 9, she experienced negative

treatment and began to be singled “out for harassment and different treatment” after she served as

a witness for a co-worker alleging sexual harassment. Jd. at {§ 9-11. Allen alleges that her co-

workers began to “ignore her,” “allow doors to slam shut on her,” fail to “properly inform her of

what was going on with the inmates” when she would arrive for her shift, micromanage her, and

discipline her for conduct “that other security officers who were similarly situated but who did not

participate in a protected activity were not disciplined.” Jd. at J§ 11-12. As factual support for her

claims of such treatment, Allen details two specific instances: (1) calling Sgt. Brown to inquire

about an inmate; and (2) circumstances surrounding her missing keys. Jd. at {| 13, 16. Allen sets

forth that on or about April 7, 2021, she called “Sgt. Brown” to inquire about an inmate at the yard,

be synonymous. See M&M Stone Co. v. Pennsylvania, 388 Fed. Appx. 156, 159 n.2 (3d Cir. 2010). Thus, despite the

parties’ use of these terms interchangeably, the Court will utilize the term “issue preclusion” for the sake of clarity.

For purposes of assessing SCI Somerset’s Motion to Dismiss, the following facts set forth in Allen’s Complaint and

attachments are accepted as true. See Pension Benefit Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192,

1196 (3d Cir. 1993) (“To decide a motion to dismiss, courts generally consider only the allegations contained in the

complaint, exhibits attached to the complaint and matters of public record.”).

ny

and “Sgt Brown responded, ‘ You are the only [expletive] person who doesn’t know what they are

doing!” Jd. at 913. Allen also sets forth two comments as factual support of her contention that

her termination was due to pretextual discrimination and retaliation. /d. at 16. First, Allen alleges

that around the time her keys went missing, she overheard a conversation between two other guards

where one guard said to another, “[nJext time you take her keys, give them to the inmates,” and

second, Allen alleges that she was told by an officer that “they were planning to get rid of her”

because she participated as a witness in her co-worker’s sexual harassment case. ECF No. 1, 15.

Allen was eventually discharged on or about July 15, 2021. Jd. at 919. Allen appealed her

termination to the State Civil Service Commission which found that she failed to establish a prima

facie claim of retaliation or disparate treatment, and “failed to present evidence that” SCI

Somerset’s “legitimate [and] non-discriminatory reasons” “were pretextual.” Commission

Adjudication 30766, pp. 23-25.4 The Commission noted that SCI Somerset’s proffered reasons

for Allen’s termination included Allen: (1) losing her key chit and failing to file a required DC-121

report until seventeen days later; (2) losing her personal vehicle keys due to failure to appropriately

secure them to her person by a key caddy; and (3) failure to “maintain control of her issued utility

belt containing OC spray and handcuffs by leaving [them] unattended within the facility.”

Commission Adjudication 30766, pp. 23-25. Allen challenged the State Civil Service

4 Allen filed the State Civil Service Commission’s adjudication of the issue as part of Exhibit 1, which she attached to

her Brief in Opposition to the Motion to Dismiss. ECF No. 14, Exhibit 1. However, because the Third Circuit has set

forth that “‘it is proper for this Court to take judicial notice of decisions of an administrative agency. . .” Furnari v.

Warden, Allenwood Federal Correctional Inst., 218 F.3d 250, 255 (3d Cir. 2000); see also Manguriu v. Lynch, 794

F.3d 119, 121 (1st Cir. 2015) (“We note, moreover, that courts normally can take judicial notice of agency

determinations.”); Fornalik v. Perryman, 223 F.3d 523, 529 (7th Cir. 2000) (“[I]t is well-established that executive

and agency determinations are subject to judicial notice.”); Don Lee Distributor, Inc. (Warren) v. N.L.R.B., 145 F.3d

834, 841 n.5 (6th Cir. 1998) (“[W]e have held that it is appropriate to take judicial notice of ‘adjudicative facts’ such

as agency and judicial decisions, even where those decisions contain disputed statements of fact, as long as we take

judicial notice for some purpose other than to take a position on the disputed fact issue.”), this Court takes judicial

notice of the State Civil Service Commission’s adjudication. The Commission’s adjudication may be found at

http://sites.state.pa.us/cslegal/AdjView.aspx (input appeal number "30776,” select “Angela M Allen vs. Department

of Corrections Cr Smr Scy”) (cited as “Commission Adjudication 30776”). The Court does not look to the State Civil

Service Commission’s decision to find facts but to establish the adjudication’s substance.

Commission’s adjudication before the Commonwealth Court of Pennsylvania, raising new

evidence that allegedly suggested her termination was pretextual. ECF No. 14, pp. 1,4; see also

Allen vy. State Correctional Institution at Somerset, No. 839 C.D. 2022, 2023 WL 7521106

(Commw. Ct. Pa. Nov. 14, 2023) (“Allen I’). On November 14, 2023, almost one month after

Allen filed her Complaint with this Court, the Commonwealth Court affirmed the State Civil

Service Commission’s adjudication, finding that Allen “did not prove retaliation or that her

dismissal was due to discriminatory reasons.” Allen I, 2023 WL 7521106, at *5S.

Il. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed, in whole

or in part, for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.

12(b)(6). In this way, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.

1993). “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Jd. (citing Twombly, 550 U.S. at 556). While

a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint

must provide “more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action.” Twombly, 550 U.S. at 555 (internal citations omitted).

At the motion to dismiss stage, the court does not address whether the plaintiff will be able

to prove the facts alleged or will ultimately prevail on the merits, but instead determines if the

claimant is entitled to offer evidence to support the claims. See Maio v. Aetna, Inc., 221 F.3d 472,

482 (3d Cir. 2000). As such, the court must accept as true all well-pled factual allegations in the

complaint and its attachments and view all reasonable inferences in the light most favorable to the

plaintiff(s). See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 □□□ Cir. 2002); In re

Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997). However, the

court is not required to accept inferences that are unsupported by factual allegations in the

complaint or legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555;

California Pub, Emp. Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004).

When determining the sufficiency of a complaint under the standards establish in Twombly

and Jgbal, a court must: (1) “tak[e] note of the elements a plaintiff must plead to state a

claim,” /gbal, 556 U.S. at 675; (2) identify allegations unsupported by facts that, “because they

are no more than conclusions, are not entitled to the assumption of truth,” Jd. at 679; see

also Burtch y. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011); and, (3) assume the veracity

of well-pleaded factual allegations and proceed to “determine whether they plausibly give rise to

an entitlement to relief.” Jgbal, 556 U.S. at 679. In short, a motion to dismiss should not be

granted if a plaintiff alleges facts, which taken as true, would entitle him/her to relief. See /qbal,

281 F.3d at 678; see generally Twombly, 550 U.S. at 570.

Ii. Discussion

A. Issue Preclusion

“As one of its first acts, Congress directed that all United States courts afford the same full

faith and credit to state court judgments that would apply in the State’s own courts.” Kremer y.

Chemical Const. Corp., 456 U.S. 461, 462-63 (1982) (citing Act of May 26, 1790, ch. 11, 1 Stat.

122, 28 U.S.C. § 1738). As such, unless “there is reason to doubt the quality, extensiveness, or

fairness of the procedures followed in the prior litigation,” id. at 481 (quoting Montana v. United

States, 440 U.S. 147, 164 n.11 (1979)), “the usual rule is that merits of a legal claim once decided

in a court of competent jurisdiction are not subject to redetermination in another forum.” Jd. at

485.

“The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,

which are collectively referred to as ‘res judicata’.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008).

“Although these doctrines both govern the preclusive effects of a former adjudication, they are

applied in different ways.” M&M Stone Co., 338 Fed.Appx. at 161. Claim preclusion “instructs

that a final judgment on the merits forecloses successive litigation of the very same claim,” Bravo-

Fernandez v. U.S., 580 U.S. 5, 10 (2016) (quoting New Hampshire v. Maine, 532 U.S. 742, 748

(2001)) (internal quotation marks omitted), and forecloses “relitigation of matters that should have

been raised in an earlier suit [but were not],” Migra v. Warren City School Dist. Bd. of Educ., 465

U.S. 75, 77 n.1 (1984); see also M&M Stone Co., 338 Fed.Appx. at 161, “whether or not

relitigation of the claim raises the same issues as the earlier suit.” Taylor, 553 U.S. at 892 (quoting

New Hampshire, 532 U.S. at 748). Conversely, the “doctrine of issue preclusion ordinarily bars

relitigation of an issue of fact or law [only if it was] raised and necessarily resolved by a prior

judgment,” Bravo-Fernandez, 580 U.S. at 10, regardless of “if the issue recurs in the context of a

different claim.” Taylor, 553 U.S. at 892 (quoting New Hampshire v. Maine, 532 U.S. 742, 748-

49 (2001)).° Issue preclusion “derives from the simple principle that later courts should honor the

5 While issue preclusion is distinct from claim preclusion in that it bars individual issues of fact or law previously

determined from being relitigated in a subsequent proceeding, it is possible for issue preclusion to bar an entire claim

from being litigated in a subsequent proceeding should an issue of fact or law that was previously litigated be identical

to an issue that is essential to the success of a subsequent claim; this is true regardless of whether the claim is different

than that which was raised previously. See Kremer, 456 U.S. at 463-64, 479-80 (finding that issue preclusion barred

a plaintiff from bringing a Title VII claim in federal court when he had raised a discrimination charge under state law

because the elements of a successful employment discrimination claim were nearly identical such that the plaintiff

could not succeed in his Title VII claim consistent with the agency’s determination of his state law claim); cf Dici v.

Commonwealth of Pennsylvania, 91 F.3d 542, 550 (3d Cir. 1996) (holding that issue preclusion did not bar plaintiff

who had raised a workmen’s compensation claim in an earlier proceeding from raising a Title VII claim before the

district court as an evaluation of the framework of each claim indicated that each of the underlying legal issues were

first actual decision of a matter that has been actually litigated,” Burlington, 63 F.3d at 1231

(quoting 18 CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE

AND PROCEDURE § 4416 (1981)), and implicitly indicates that “a losing litigant deserves no rematch

after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the

one he subsequently seeks to raise.” Astoria Fed. Sav. & Loan Ass'n v, Solimino, 501 U.S. 104,

107 (1991); see also Dici, 91 F.3d at 547; Rosemont Taxicab Co., Inc. v. Philadelphia Parking

Authority, 327 F.Supp.3d 803, 816 (E.D. Pa. 2018). Still, “[t]he party asserting issue preclusion

bears the burden of proving its application to the case at hand.” Ogrod v. City of Philadelphia, 598

F.Supp.3d at 277 (cleaned up) (quoting Dici, 91 F.3d at 548-49); see also Greenway Center, Inc. v.

Essex Ins. Co., 475 F.3d 139, 147 Gd Cir. 2007).

When evaluating the application of issue preclusion to a federal claim, “[f]ederal courts

must give a state court judgment the same preclusive effect as would the courts of that state.”

Swineford v, Snyder County, Pa., 15 F.3d 1258 1266 (3d Cir. 1994) (citing 28 U.S.C. § 1738). In

this way, issue preclusion “not only reduce[s] unnecessary litigation and foster[s] reliance on

adjudication, but also promote[s] the comity between state and federal courts that has been

recognized as a bulwark of the federal system.” Stone Co., 338 Fed.Appx. at 161 (quoting

Allen v. McCurry, 449 U.S. 90, 95-96 (1980)). To determine whether issue preclusion “bars

relitigation of an issue previously determined by a state court, a federal court must apply state law

and evaluate whether relitigation would be precluded in the courts of the state in which the initial

not identical). The Supreme Court detailed a subsequent claim that would be barred by issue preclusion in Bravo-

Fernandez, 580 U.S. at 11. There, the Court discussed a case involving the robbery of six poker players by a group

of masked men and noted that where the state charged a man with the robbery of one of six poker players and the jury

acquitted him, the state was prevented by issue preclusion—as incorporated into the Double Jeopardy Clause—from

trying the same man for robbery of a second of the six poker players as the first jury had already determined the issue

of whether the accused was a part of the group of robbers. Bravo-Fernandez, 580 U.S. at 11 (discussing Ashe v.

Swenson, 397 U.S. 436 (1970)).

litigation took place.” Rosemont Taxicab Co., 327 F.Supp.3d at 816-17; see Marrese v. American

Academy of Orthopaedic Surgeons, 470 U.S. 373, 381 (1985). A similar approach is to be taken

in the context of a state court decision upholding a state administrative agency’s determination.

See Dici, 91 F.3d at 547-48 (“[A] federal court in a Title VII action should grant preclusive effect

to a state court decision upholding a state administrative agency determination when the state

court’s decision would be barred by issue preclusion in subsequent actions in that state’s own

courts.”). The Pennsylvania Supreme Court has set forth that issue preclusion will apply when:

(1) the issue decided in the prior case is identical to the one presented in the later

action; (2) there was a final adjudication on the merits; (3) the party against whom

the plea is asserted was a party or in privity with a party in the prior case; (4) the

party against whom the doctrine is asserted had a full and fair opportunity to litigate

the issue in the prior proceeding; and (5) the determination in the prior proceeding

was essential to the judgment.

See Metropolitan Edison Co. v. Pennsylvania Public Utility Com’n, 767 F.3d 335, 351 (3d Cir.

2014) (citing Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47, 50-51 (Pa. 2005) (cleaned

up); see also Wilmington Trust, National Association v. Unknown Heirs, 219 A.3d 1173, 1179 (Pa.

Super. Ct. 2019).

Although issue preclusion is an affirmative defense, a court may consider the preclusive

effect of a state court judgment raised in a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). M&M Stone Co, v. Pennsylvania, 388 Fed.Appx. 156, 162 (3d Cir. 2010) (citing

Connelly Found. v. Sch. Dist. of Haverford Twp., 461 F.2d 495, 496 (3d Cir. 1972)); see also Fed.

Rule Civ. Proc. 8(c)(1) (listing avoidance and affirmative defenses that must be raised in response

to a pleading, including res judicata). The Third Circuit has set forth that:

In the context of deciding a Rule 12(b)(6) motion that raises issue preclusion

concerns, and where a plaintiff has not included the existence or substance of the

prior adjudications in the body of, or attachments to, its complaint, it is axiomatic

that a court must still consider the prior adjudication in order to determine whether

issue preclusion bars that plaintiff’s claims. Thus, we have held that a prior judicial

opinion constitutes a public record of which a court may take judicial notice.

M&M Stone Co., 388 Fed.Appx. at 162. In doing so, a court may not examine a transcript of a

prior proceeding to find facts without converting a motion to dismiss into a motion for summary

judgment, but a court may take judicial notice of a prior judicial opinion to establish the opinion’s

existence and substance. See M&M Stone Co., 388 Fed.Appx. at 162.

In its Motion to Dismiss and Brief in Support, SCI Somerset chose to raise only the

affirmative defense of issue preclusion, omitting any discussion as to the merits of Allen’s claims.

ECF Nos. 9, 10. As such, the Court will only consider the application of issue preclusion to Allen’s

claims.

i. Count I: Sex Discrimination

In her Complaint, Allen alleges that SCI Somerset discriminated against her on the basis

of her sex in violation of Title VII and the PHRA. ECF No. 1, § 21.° In response, SCI Somerset

contends in its Brief in Support of its Motion to Dismiss, ECF No. 10, that issue preclusion bars

Allen’s claim as the “Commonwealth Court affirmed the State Civil Service Commission’s ruling

the Department [SCI Somerset] did not engage in retaliation or wrongful termination based

on sex discrimination.” ECF No. 10, p. 7.

The Court recognizes that: (1) there was a final adjudication on the merits of Allen’s

disparate treatment claim,’ (2) the parties in all relevant proceedings were the same parties in the

6 Allen, as a female, contends that she is a member of a protected class under Title VII, and that she was “highly

qualified for her position of security officer as she successfully completed the duties of her position.” ECF No. 1, {if

28-29, Despite alleging that she was “regularly and severely harassed by [SCI Somerset] on the basis of her sex” and

that “[a]fter multiple reports to her supervisors and the Human Resources department,” she was “ultimately terminated

direct result of her complaints of sexual harassment and verbal abuse,” Jd. at §{ 30-33, the only factual support

Allen specifically set forth in her Complaint that may, even tangentially, be construed as implicating sex discrimination

is Sgt. Brown’s April 7, 2021 comment to Allen, where Sgt. Brown stated, “You the only {expletive] person who

doesn’t know what they are doing!” ECF No. 1, { 13.

7 The Commonwealth Court noted that Allen claimed her discharge was “based upon discriminatory intent and

disparate treatment.” Allen I, 2023 WL 7521106, at *2. As such, Allen’s prior claim was adjudicated by the

current proceeding, and (3) the determination in the prior proceeding(s) was essential to the

judgment.® However, Allen contends that by alleging her termination was pretextual, she has

introduced “a new issue that was not adjudicated in the previous proceeding,” ECF No. 14, p. 1,

and that, because this issue was not adjudicated in the previous proceeding, she did not possess a

full and fair opportunity to litigate the issue. Jd at p. 2. As such, the Court will undertake an

analysis to determine whether the issues underlying Allen’s disparate treatment claim, decided in

the prior case, are identical to the issues presented here under Allen’s Title VI and PHRA sex

discrimination claim such that Allen’s pending claims before this Court must be barred by issue

preclusion before evaluating whether Allen had a full and fair opportunity to litigate the issue of

pretext. .

a. Were the Issues presented by Allen’s Disparate Treatment Claim

Identical to the Instant Title and PHRA Sex Discrimination

Claim?

The State Civil Service Commission evaluated Allen’s claim of discrimination with

reference to 71 Pa.C.S.A. § 2704, the Civil Service Reform Act, which prohibits discrimination

“against an individual in recruitment, examination, appointment, training, promotion, retention or

any other personnel action with respect to the classified service because of race, gender, religion,

disability or political, partisan or labor union affiliation or other non-merit factors.” Commission

Adjudication 30776, p. 7. The Commission undertook an analysis of Allen’s “claims of traditional

discrimination,” which encompass claims of discrimination based upon gender, and found that

Allen “failed to establish her removal was motivated by disparate treatment.” Jd.at pp. 7, 25. In

Commonwealth Court as a disparate treatment claim. Jd at *5. SCI Somerset argues Allen’s current sex

discrimination claim is barred by issue preclusion due to the prior adjudication of Allen’s disparate treatment claim.

8 There is no dispute between the parties as to these three issues.

10 .

deciding Allen’s appeal of the State Civil Service Commission’s adjudication, the Commonwealth

Court likewise undertook an analysis of Allen’s claims of disparate treatment utilizing the Civil

Service Reform Act and held that Allen failed to establish a prima facie case of discrimination,

affirming the Commission’s adjudication of the matter. Allen I, 2023 WL 7521106, at *3, *5.

When alleging a discrimination claim under the Pennsylvania Civil Service Act, “the

employee claiming discrimination in personnel actions has the burden of presenting . . . sufficient

evidence that, if believed, and otherwise unexplained, indicates more likely than not that

discrimination occurred.” Kunsak vy. Wetzel, No. 15-1648, 2018 WL 4357131, at *7 (WD. Pa.

Sept. 12, 2018) (quoting Anderson v,. State Civil Serv. Comm’n, No. 159 C.D, 2015, 2016 WL

55120, at *5 (Pa. Commw. Ct. Jan. 5, 2016)) (discussing 71 P.S. §741.905(a) (current version at

71 Pa.C.S.A. § 2704)). Although, “in discrimination cases, the prima facie burden of proof is not

an onerous one,” id. (quoting Moore v. State Civil Serv. Comm’n, 922A.2d 80, n.8 (Pa. Commw.

Ct. 2007)), the Civil Service Commission still requires that discrimination claims clearly and

concisely state the grounds of the interest of the person in the subject matter, the facts relied upon,

and, the relief sought as well as specific facts including: (1) the acts complained of; (2) how

treatment differs from treatment of others similarly situated; (3) when the acts occurred; and, (4)

when and how the appellant first became aware of the alleged discrimination . See id. (quoting 4

PA. CODE § 105.12(b)-(c)).

In this Court, Allen specifically raises a claim of sex discrimination under Title VII and the

PHRA. Because the Third Circuit has set forth in the context of sex discrimination that “[c]laims

under the PHRA are interpreted coextensively with Title VII claims,” Atkinson v. LaFayette

College, 460 F.3d 447, 454 n.6 (d Cir. 2006), Allen’s PHRA sex discrimination claim will

11

“appropriately [be] analyzed under the same framework as her Title VII claim.” Wallace □□

Fraternal Order of Police, Lodge No. 5, 174 F.Supp.2d 242, 245 n.2 (E.D. Pa. 2001).

Allen alleges pretextual sex discrimination as opposed to facial sex discrimination.’ See

Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 131 (3d Cir. 1996) (noting the different

theories of liability under Title VII). In order to establish a prima facie case of pretextual sex

discrimination, Allen must “show that: (1) she is a member of a protected class; (2) she was

qualified for her former position; (3) she suffered an adverse employment action; and (4) the

circumstances give rise to an inference of unlawful discrimination,” Carroll vy. Acme Truck Line,

992 F.Supp.2d 512, 528 (W.D. Pa. 2014) (quoting Sarullo v. U.S. Postal Serv., 352 F.3d 789,

797 (3d Cir. 2003)); see also Makky, 541 F.3d at 214, or that “members of the opposite sex were

treated more favorably.” Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013) (citing Hugh v.

Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)).

The issues determined by the Commonwealth Court in adjudicating Allen’s disparate

treatment claim are identical to those presented by the fourth element of Allen’s sex discrimination

claim before this Court. Under Title VII, a claimant who sufficiently alleges the first three

elements will be deemed to have established a prima facie case of sex discrimination if she

sufficiently alleges either: (1) that the circumstances give rise to an inference of unlawful

discrimination, Carroll, 992 F.Supp.2d at 528 (quoting Sarullo, 352 F.3d at 797); Makky, 541 F.3d

at 214, or (2) that members of the opposite sex were treated more favorably. Burton, 707 F.3d at

426 (citing Hugh, 418 F.3d at 267).

° The Court notes that Allen does not specifically allege upon what theory her claim of sex discrimination is based.

However, Allen sets forth the elements expressed in Langley v. Merck and Co., 186 Fed.Appx. 258 (3d Cir. 2006)

(involving a claim of pretextual racial discrimination) in alleging her claim of sex discrimination and cites to

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (setting forth the pretext theory) as well as Makky v. Chertoff,

541 F.3d 205, 214 (3d Cir, 2008), where the Third Circuit employed another articulation of the pretext elements. See

ECF No. 1, Thus, it is clear from the cases relied upon by Allen in alleging her prima facie case that she alleges

pretextual sex discrimination.

12

The Commonwealth Court adjudicated the first of these issues when it found that Allen

“did not establish a prima facie case of disparate treatment.” Allen I, 2023 WL 7521106, at *5. A

discrimination claim under 71 Pa.C.S.A. § 2704 may be established if “the employee claiming

discrimination . . . [presents] sufficient evidence that, if believed, and otherwise unexplained,

indicates more likely than not that discrimination occurred.” Kunsak, 2018 WL 4357131, at *7

(quoting Anderson, 2016 WL 55120, at *5) (discussing 71 P.S. §741.905(a) (current version at 71

Pa.C.S.A. § 2704)). While this methodology eventually implicates a type of McDonnell Douglas

burden-shifting that applies in later stages of litigation in Title VII or PHRA claims, see Dreibelbis

v. County of Berks, 438 F.Supp.3d 304, 315 (E.D. Pa. 2020); James v. Tri-Way Metalworkers, Inc.,

189 F.Supp.3d 422, 441 (M.D. Pa. 2016), a petitioner under 71 Pa. C.S.A. § 2704 must first allege

sufficient evidence that indicates discrimination occurred before a burden shifting analysis is

undertaken. See generally Kunsak, 2018 WL 4357131, at *7 (explaining that once an employee is

able to establish a prima facie case of discrimination, those allegations will remain determinative

of the factual issues of the case if the employer is unable to provide a credible response). However,

in adjudicating Allen’s disparate treatment claim, the Commonwealth Court examined Allen’s

pleadings and found that she “did not establish a prima facie case of disparate treatment,” and

included no discussion as to any legitimate, non-discriminatory reasons proffered by SCI

Somerset. Compare Allen I, 2023 WL 7521106, at *5 (where the Commonwealth Court found that

Allen “did not establish a prima facie case of disparate treatment,” analyzing only Allen’s claims

and omitting any discussion as to legitimate reasons offered by SCI Somerset in response) with

Allen 1, 2023 WL 7521106, at *4 (where the Commonwealth Court assumed Allen “established a

prima facie case,” found that SCI Somerset “provided legitimate, non-discriminatory reasons for

her removal,” and held that, in response, Allen “provided no evidence that th[o]se proffered

13

reasons were pretextual”).!° In this way, the Commonwealth Court found that Allen failed to allege

sufficient evidence that indicated discrimination had occurred, or, in the words of Title VII that

Allen failed to sufficiently allege circumstances that give rise to an inference of unlawful

discrimination.

While the Commonwealth’s adjudication of Allen’s disparate treatment claim did not

explicitly decide the second issue, whether Allen’s claim sufficiently alleged that members of the

opposite sex were treated more favorably, the State Civil Service Commission addressed this issue

in its adjudication of the matter. Specifically, the Commonwealth Court addressed Allen’s claims

of disparate treatment relative to Lambert, a fellow female COT, and merely mentioned her claims

of disparate treatment relative to COT Brown in passing. Allen I, 2023 WL 7521106, at □□□□□

Conversely, in the State Civil Service Commission’s adjudication of the issue, the Commission

factually distinguished SCI Somerset’s treatment of Brown, a male COT, from SCI Somerset’s

treatment of Allen and found that Brown was not treated more favorably. Commission

Adjudication 30776, pp. 17, 25. In this way, the Commission adjudicated whether a member of

the opposite sex was treated more favorably than Allen. As such, both issues of fact or law relevant

!0 The Court notes that even should the Commonwealth Court have incorporated a type of McDonnell Douglas burden

shifting analysis in finding that Allen failed to allege a prima facie disparate treatment claim, a final determination by

a state court that non-pretextual, just cause exists for the employee’s termination may preclude a subsequent claim due

to issue preclusion when the claimant in the subsequent case would have to prove that the “just cause” offered by the

employer was pretextual for the claim to succeed and the issues decided by the state court are identical to the issues

before the subsequent court. See Thomas v. Parkway West Career and Technology Center, No. 12-cv-1867, 2013 WL

1195115, *6 (WD. Pa. Mar. 22, 2013) (holding that issue preclusion prevented Plaintiff from forwarding claims that

his termination was pretextual when a claim “under the USERRA would necessitate Plaintiff demonstrating that

Defendants did not have just cause to furlough him” and the state court found just cause for Plaintiff’s furlough

existed); see also Dennison v. Indiana University of Pennsylvania, No. 22-2649, 2023 WL 8595426, at * 6 Gd Cir.

Dec. 12, 2023) (At later stages of litigation than 12(b)(6), “[s]ex discrimination claims are analyzed under the

McDonnell Douglas three-step burden-shifting framework” where: (1) a plaintiff “must establish a prima facie case

of sex discrimination,” (2) “[i]f she succeeds, the burden of production shifts to the defendant-appellees to advance a

legitimate, non-discriminatory reasons for their actions,” and (3) “[i]f they advance such a position, the burden shifts

back to [the plaintiff] to prove that the nondiscriminatory explanation is merely a pretext for discrimination.”).

11 While the Commonwealth Court noted Allen’s disparate treatment relative to COT Brown, the Commonwealth

Court included no discussion as to whether Brown was a member of the opposite sex who was treated more favorably

than Allen beyond affirming the Commission’s conclusion. See generally Allen I, 2023 WL 7521106, at *5.

14

to the fourth element of Allen’s Title VII sex discrimination claim presently before this Court were

conclusively adjudicated—the Commonwealth Court conclusively adjudicated the issues of fact

or law relevant to the first issue in the express language of its opinion and conclusively adjudicated

the issues of fact or law relevant to the second issue when it affirmed the Commission’s

determination which directly addressed the issue.'*

Because the issues of law or fact decided by the Commonwealth Court and the Commission

when adjudicating Allen’s disparate treatment claim are identical to the issues presented here under

the fourth element of Allen’s Title VII and PHRA sex discrimination claim, Allen’s sex

discrimination claim is barred by issue preclusion because those adjudications foreclose Allen’s

ability to prove a required prima facie element of her sex discrimination claim. See Astoria Fed.

Sav, & Loan Assn, 501 U.S. at 107 (“We have long favored application of the common-law

doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations

of administrative bodies that have attained finality.”); Wei v. Pennsylvania, 796 Fed.Appx. 143,

146 (3d Cir. 2020) (“If a decision by a state administrative agency has been reviewed by a state

court, that decision is given preclusive effect in federal court.”); see also Rosemont Taxicab Co.,

327 F.Supp.3d at 817 n.9 (“Under Pennsylvania law, issue preclusion is not limited to the findings

of a prior judicial proceeding, and a court may apply issue preclusion to the findings made in a

prior adjudicative administrative proceeding.”).

b. Does Allen’s “New Evidence” Prevent the Application of Issue

Preclusion?

!2 While the Commonwealth Court did not mention SCI Somerset’s treatment of COT Brown in its opinion, this matter

was still adjudicated by the Commonwealth Court when it affirmed the State Civil Service Commission’s

determination, which included analysis as to that issue. Commonwealth of Pennsylvania v. Brown, et al., 373 F.2d

771, 778 (3d Cir. 1967) (“It is settled . . . that matters pertinent to an issue before a court and which were clearly

presented to it, by brief or appendix thereto, are to be taken as covered by the court’s decision though not mentioned

in the opinion.”).

15

Allen sets forth in her Brief in Opposition to SCI Somerset’s Motion to Dismiss that she

“discovered new evidence . . . [that casts] doubt on [SCI Somerset’s] original reason for

terminating [her].”!> ECF No. 14, p. 5. Specifically, Allen first alleges that this evidence suggests

that her keys were stolen, not lost, as she “heard two unnamed officers state . . . [‘]next time you

take her keys, give them to the inmates.[’]” ECF No. 14, p. 5. Second, after averring that she

“was terminated for not reporting the chit missing to the [c]aptain in the control room,” id. at p. 4,

Allen alleges that newly discovered evidence proves that Captain Washabaugh, who testified that

Allen did not go to the control room on the evening she misplaced her key chit, was on vacation

the evening in question. Jd. at p. 4-5. As such, Allen contends that Captain Washabaugh was “not

able to testify [as to] what happened... Jd. at p. 5. Allen contends that “[t]his evidence shows

that [she] was discriminated against because of her sex in witnessing the sexual harassment of her

co-worker and she was terminated for this reason, not because she misplaced her keys or chit.” Id.

Thus, Allen alleges that issue preclusion should not be applied to her claims as she can demonstrate

that the reason for her termination was pretextual and, in doing so, present “a new issue that was

not adjudicated in the previous proceeding.” Jd. at p. 1.

“The Third Circuit has recognized a number of ‘extraordinary circumstances’ that warrant

reconsideration of an issue that was previously decided by the Court in an earlier stage of litigation.

Those circumstances include situations in which: (1) new evidence is available; (2) a supervening

new law has been announced; or (3) the earlier decision was clearly erroneous and would create

manifest injustice.” Bosley v. The Chubb Institute, 516 F.Supp.2d 479, 484 (E.D. 2007) (quoting

'3 The Court notes the existence of the following findings of fact set forth by the State Civil Service, not for the veracity

of the findings but as further background for the original reasons the Commission found that SCI Somerset had in

terminating Allen. In its findings of fact, the State Civil Service Commission set forth that the termination letter Allen

received included the following reasons, among others, for her termination: (1) she failed to report a lost key chit and

(2) she failed to report that she was missing her personal vehicle keys in addition to admitting to keeping her keys in

her pocket. Commission Adjudication 30776, p. 2, § 2 (citing Comm. Ex. A.).

16

Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir.

1997)). These extraordinary circumstances are incorporated in the “change-in-law exception”

articulated by the Supreme Court in Herrera v. Wyoming, 587 U.S. 329, 343 (2019). The change-

in-law exception ensures equitable administration of the law by preventing a court from giving

preclusive effect to an earlier judgment when significant changes in either controlling facts or legal

principles have occurred since the earlier judgment. See Herrera, 587 U.S. at 343 (citing Montana

v. United States, 440 U.S. 147, 155, 157-58 (1979)); Commissioner v. Sunnen, 333 U.S. 591, 599

(1948) (“[A] subsequent modification of the significant facts or a change or development in the

controlling legal principles may make that [prior] determination obsolete.”). In this way, new facts

may prevent the application of issue preclusion, but in order to do so, “new facts” must have

material “bearing on the issue,” Campaign Legal Center v. 45Committee, Inc., 118 F.4th 378, 389

(D. D.C. Cir. 2024), such that they constitute “significant changes in controlling facts.” Montana,

440 U.S. at 157-58 (emphasis added). These facts must be “new,” meaning that the information

became “known after the [prior] decision,” 45Committee, Inc., 118 F.4th at 389, because it could

not have previously been discovered by the party. See Campaign Legal Center v. Federal Election

Commission, No. 22-cv-3319 (CRC), 2023 WL 6276634, at *11 (D.C. Sept. 26, 2023).

In order for Allen’s allegedly new evidence to prevent this Court from applying issue

preclusion, it must have material bearing on her specific claims and be new, in that it could not

have been previously discovered. See 45Committee, Inc., 118 F.4th at 389; Federal Election

Commission, 2023 WL 6276634, at *11. Here, Allen has raised a Title VII and PHRA pretextual

sex discrimination claim. As such, for the new evidence to prevent the application of issue

preclusion, it must have material bearing as to whether Allen was discriminately terminated based

upon her sex. Assuming, arguendo, that Allen’s allegedly “new” evidence has material bearing as

17

to pretext generally, neither piece of evidence has any material bearing specific to Allen’s sex

discrimination claim at issue here. Neither piece of evidence, as proffered by Allen, remotely

implicates her sex and therefore, does not suggest that she was discriminately terminated due to

her sex. Additionally, from Allen’s own filings, it is clear that she does not assert that the new

evidence was discovered after the Commonwealth Court’s adjudication. Instead, both pieces of

“new evidence” set forth in Allen’s Brief in Opposition to the Motion to Dismiss, ECF No. 14,

were present in the brief she filed with the Commonwealth Court when she appealed the State

Civil Service’s adjudication.'4 ECF No. 14-1, p. 9.!° Even in Allen’s Brief in Opposition to the

'4 Tn her brief to the Commonwealth Court, Allen specifically alleged that she “overhead two officers talking ... in

response to [her] problems when her car keys were claimed to be found by the metal detector” saying, “’[n]Jext time

you take her keys, give them to an inmate.” ECF No. 14-1, p. 9. Additionally, Allen argued that “Shift Commander,

Officer Washabaugh, was on special leave on April 26, 2021, the day Allen went to control” proving his statement

“that Allen had never come to the control to ask about her chit” was false. /d.

'S Courts “generally consider only the allegations contained in the complaint, exhibits attached to the complaint and

matters of public record” in deciding a motion to dismiss. Pension Benefit Guaranty Corp, 998 F.2d at 1196; see also

Siehl v. City of Johnstown, 365 F.Supp.3d 587, 596 (W.D. Pa. 2019) (“[C]ourts may consider matters of public record

and other matters of which the court may take judicial notice” in ruling on a motion to dismiss.). “[E]xamples of

matters of public record include Securities and Exchange Commission filings, court-filed documents, and Federal

Drug Administration reports published on the FDA website.” Sturgeon v. Pharmerica Corp., 438 F.Supp.3d 246, 257-

58 (E.D. Pa. 2020) (emphasis added) (taking judicial notice of the existence—rather than the truth of the facts

asserted—of four filings by the plaintiff in a prior action against defendant in order to determine if the plaintiff’s

retaliation claim was precluded by a prior jury verdict). As such, the Court will look to Allen’s “Brief and Exhibits

Filed in the Commonwealth Court,” that Allen attached as an exhibit to her Brief in Opposition to the Motion to

Dismiss, ECF No. 14-1, in order to note the existence of the arguments made in Allen’s brief to the Commonwealth

Court and determine whether Allen had a full and fair opportunity to litigate the issue of pretext; the Court does not

look to this filing for the truth of the facts asserted therein. See Sturgeon, 438 F.Supp.3d 246, 257-58 (recognizing that

the court may take judicial notice of filings in other proceedings “to establish their existence [for the purpose of

applying issue preclusion], ‘and not for the truth of the facts asserted in those filings’”) (citing M & M Stone Co., 388

F. App'x at 162 (“In the context of deciding a Rule 12(b)(6) motion that raises issue preclusion concerns, and where a

plaintiff has not included the existence or substance of the prior adjudications in the body of, or attachments to, its

complaint, it is axiomatic that a court must still consider the prior adjudication in order to determine whether issue

preclusion bars that plaintiff's claims.”)); see also United States ex rel. Geisler v. Walters, 510 F.2d 887, 890, n.4 (3d

Cir. 1975) (taking judicial notice of briefs and petitions filed in state court, “as the United States District Court could

have done”); Brown, et al., 373 F.2d at 778 (“[A] federal court may take judicial notice of matters of record in state

courts within its jurisdiction.”); Trustees of General Assembly of Lord Jesus Christ of the Apostolic Faith, Inc., et al.

y. Patterson, et al., No. 21-634-KSM, 2022 WL 16944000, at *2 (E.D. Pa. Nov. 14, 2022) (taking judicial notice of

court filings in state and other federal actions along with court opinions and orders in those matters as to the fact of

their filing and the rulings issued by the court[s], but not as to the truthfulness of “the contentions and allegations of

the parties contained therein”); Hynoski v. Columbia County Redevelopment Authority, 941 F.Supp.2d 547, 557 (M.D.

Pa. 2013) (taking judicial notice of documents filed in the Court of Common Pleas of Columbia County,

Pennsylvania); cf Albion Engineering Co. v. Hartford Fire Insurance Co., 779 Fed.Appx. 85, 90, n. 29 (3d Cir. 2019)

(declining to take notice of briefs filed in the Ninth Circuit for the purpose of supporting plaintiff’s argument that New

18

Motion to Dismiss, she cites to ECF No. 14-1, entitled “Exhibit A-Brief & Exhibits Filed in the

Commonwealth Court,” upon stating that she “and her attorney have discovered new evidence that

two security guards [Allen] worked with gave statements which indicate that... Allen’s keys were

stolen and the chit was misplaced.” ECF No. 14, p. 4. In this way, Allen’s allegedly new evidence

does not prevent the application of issue preclusion as it neither materially bears upon her Title

VII and PHRA sex discrimination claim nor is it new in the sense that it could not have been

discovered before the prior proceeding as it was, in fact, proffered by Allen in support of her pretext

argument in the prior proceeding. ECF No. 14-1, p.9.

c. Was Allen Afforded a Full and Fair Opportunity to Litigate

Pretext?

Allen contends that the issue of pretext “was not adjudicated in the previous proceeding,”

and, therefore, application of issue preclusion would be inappropriate as “the issue of pretext was

not fully and fairly litigated in the Commonwealth Court.” ECF No. 14, pp. 1, 2.

Issue preclusion “cannot apply when the party against whom the earlier decision is

asserted did not have a full and fair opportunity to litigate that issue in the earlier case.” United

States ex rel. Doe v. Heart Solutions, PC, 923 F.3d 308, 316 (3d Cir. 2019) (quoting Allen v.

McCurry, 449 U.S. 90, 95 (1980)). As such, “if there is reason to doubt the quality, extensiveness,

or fairness of procedures followed in prior litigation,” issue preclusion may not be appropriate.

B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 158 (2015) (quoting Montana, 440

U.S. at 164, n.11). However, the requirement that a party have a full and fair opportunity to litigate

the issue “is met if a party could litigate issues in the manner available in a court of record and had

sufficient incentive to do so vigorously in the first proceeding.” Adelphia Gateway, LLC □□

Jersey would follow California, modifying its law, as such notice would require taking judicial notice of the filings

for the truth of the arguments contained therein as opposed to its existence and would thus be inappropriate).

19

Pennsylvania Environmental Hearing Board, 62 F Ath 819, 828 (3d Cir. 2023) (internal quotation

marks omitted).

In adjudicating Allen’s appeal, the Commonwealth Court found that Allen provided no

evidence that the proffered legitimate and non-discriminatory reasons for her removal were

pretextual. Allen I, 2023 WL 7521106, at *4. As noted above, both pieces of “new evidence” set

forth in Allen’s Brief in Opposition to the Motion to Dismiss, ECF No. 14, were present in Allen’s

brief filed with the Commonwealth Court when she appealed the State Civil Service’s

adjudication.!© While the Commonwealth Court did not detail in its opinion the specific after-

discovered evidence raised, aside from mentioning evidence relative to Allen’s lost keys, the after-

discovered evidence raised in Allen’s briefing was clearly covered by the court’s decision as it

addressed Allen’s contention that after discovered evidence should be considered. /d. at n. 9; see

Brown, et al.,373 F.2d at 777 (“It is settled . . . that matters pertinent to an issue before a court and

which were clearly presented to it, by brief or appendix thereto, are to be taken as covered by the

court’s decision though not mentioned in the opinion.”) (citing Bingham yv. United States, 296 USS.

211, 218-19 (1935)). The Commonwealth Court specifically “reject[e]d [Allen’s] contention that

[the after-discovered evidence] should be considered” because Allen failed to provide more than

“boilerplate assertions of the five factors” considered when evaluating whether to re-open

judgment due to after-found evidence let alone any reason why the evidence “could not [have]

be[en] ascertained with due diligence.” Allen I, 2023 WL 7521106, at *4 n. 9. In this way, Allen

had the opportunity to litigate the issue of pretext in the Commonwealth Court, both generally and

specifically as it pertained to her allegedly new evidence, and she possessed sufficient incentive to

do so vigorously, satisfying the requirement that she have a full and fair opportunity to litigate

16 See discussion infra Section (IID)(A)(i)(b); see also ECF No. 14, p. 4; ECF No. 14-1, p. 9.

20

before issue preclusion may be applied. See Adelphia Gateway, LLC, 62 F.4th at 828. Deficiencies

in pleadings filed in earlier adjudications do not suggest that a party was not afforded the requisite

opportunity to vigorously litigate the issue but merely indicate that the party failed to vigorously

litigate the issue when given the opportunity. See Kunsak, 2018 WL 4357131, at *7 (finding that

Kunsak had a full and fair opportunity to litigate her claim when she was afforded an opportunity

to do so before the State commission and on appeal to the Commonwealth Court but “failed to

allege any additional facts or present evidence to support her claim,” leading to the dismissal of

her claim as unsubstantiated). Thus, the Court finds in light of the Commonwealth Court’s

adjudication that Allen had a full and fair opportunity to litigate the issue of pretext.

As such, the Court will GRANT SCI Somerset’s Motion to Dismiss, ECF No. 9, regarding

Allen’s Title VII and PHRA sex discrimination claim.

ii. Count II: Hostile Work Environment

In her Complaint, Allen alleges that SCI Somerset “created an intolerable hostile work

environment,” ECF No. 1, § 46, in violation of Title VII and the PHRA. ECF No. 1, §{ 39-49.

While Allen does not set forth examples of the underlying harassment referenced, Allen alleges

the following in support of her hostile work environment claim: (1) Allen “was subject to

harassment by [SCI Somerset] throughout the course of her employment,” (2) “[t]he harassment

... is surely indicative of a sexually hostile work environment” in that “it was sexually charged

and riddled with discriminatory conduct,” (3) “Allen reported this harassment .. . on multiple

occasions” but no corrective action was taken, (4) “[t]he detrimental effects experienced by [Allen]

... would... affect a reasonable person so situated,” and (5) Allen “was consequently terminated

in retaliation for [her] reports.” ECF No. 1, □ 43-47. While SCI Somerset requests that this

Court apply issue preclusion and dismiss all of Allen’s claims with prejudice, ECF No. 10, p. 8,

21

SCI Somerset failed to specify how issue preclusion would bar this particular claim due to a prior

adjudication of the issues of fact or law necessary to allege a prima facie claim of hostile work

environment under Title VII or the PHRA beyond attaching the Commonwealth Court’s decision,

wherein the only reference to hostile work environment is found in a footnote where the

Commonwealth Court noted cases cited by Allen in support of her retaliation claim that were

“irrelevant to the matter at hand” because they pertained to hostile work environment claims. See

Allen I, 2023 WL 7521106, at *2 n.5; ECF No. 9-2, p. 4; see generally ECF No. 10. As such, SCI

Somerset failed to carry its burden of proving the application of issue preclusion to Allen’s hostile

work environment claim before this Court. See Ogrod, 598 F.Supp.3d at 277 (quoting Dici, 91

F.3d at 548-49); see also Greenway Center, Inc., 475 F.3d at 147. Because SCI Somerset failed to

carry its burden and declined to address the merits of this claim in its Motion to Dismiss, ECF No.

9, the Court need not conduct further analysis at this time.

Thus, the Court will DENY SCI Somerset’s Motion to Dismiss, ECF No. 9, regarding

Allen’s Title VII and PHRA hostile work environment claim.

iii. Count III: Retaliation

In her Complaint, Allen alleges that SCI Somerset retaliated against her for engaging in

protected activity by terminating her employment. ECF No. 1, 19, 53. Allen briefly mentions

two distinct theories regarding SCI Somerset’s alleged retaliation. First, Allen sets forth that she

“was discharged d[ue] to retaliation . . . because [SCI Somerset] discharged [her] after learning of

her participation in a sexual harassment/assault claim against [SCI Somerset].” ECF No. 1, □ 19.

Second, Allen alleges that SCI Somerset terminated her “employment, the most severe adverse

employment action, in retaliation for her reports of a sexually hostile work environment.” ECF

No. 1, § 53. As with the other claims raised by Allen, SCI Somerset contends in its Motion to

22

Dismiss that issue preclusion bars Allen’s retaliation claim as the “Commonwealth Court affirmed

the State Civil Service Commission’s ruling that [SCI Somerset] did not engage in retaliation or

wrongful termination based on sex discrimination.” ECF No. 10, p. 7.

The Court recognizes that, between. the two proceedings—the State Civil Service

Commission’s adjudication and the Commonwealth Court’s affirmation—that: (1) there has been

a final adjudication on the merits of Allen’s retaliation claim; (2) the parties in all relevant

proceedings were the same parties in the current proceeding; and, (3) that the determination in the

prior proceeding was essential to the judgment.'? However, two conditions, necessary for issue

preclusion to apply, remain to be determined, namely: (1) whether the issues underlying Allen’s

retaliation claim decided in the prior case are identical to the issues presented here under Allen’s

Title VII and PHRA retaliation claim such that Allen’s pending claims before this Court are barred

by issue preclusion and (2) whether Allen had a full and fair opportunity to litigate her retaliation

claim in the prior proceeding. The Court will address each remaining condition in turn as they

apply to each of Allen’s two distinct theories regarding SCI Somerset’s alleged retaliation.

In Allen I, 2023 WL 7521106, at *3-4, the Commonwealth Court addressed Allen’s claim

of retaliation relative to her participation in her co-worker’s sexual harassment/assault claim

against SCI Somerset. Therein, the Commonwealth Court declined to affirm all aspects of the

Commission’s adjudication. Jd. The Commission found that Allen had failed to allege a prima

facie case of retaliation which required allegations that: “1) she engaged in protected activity; 2)

the appointing authority w[as] aware of the protected activity; 3) that subsequent to participation

in the protected activity, she was subject to an adverse employment action by the appointing

authority; and 4) there [wa]s a causal connection between participation in the protected activity

'7 There is no apparent dispute between the parties as to these issues.

23

and the adverse employment action.” Jd. at *3 (citing Robert Wholey Co. v. Pa. Hum. Rels.

Comm’n, 606 A.2d 982, 983 (Pa. Commw. Ct. 1992)). Comparatively, the Commonwealth Court,

“assumf[ed] [Allen] established a.prima facie case, [and found that SCI Somerset] provided

legitimate, non-discriminatory reasons for her removal, supported by substantial evidence of

record.” Jd. at *4. Because the Commonwealth Court further found that Allen “provided no

evidence that these proffered reasons were pretextual,” the Commonwealth Court held that Allen

failed to prove her discharge was motivated by a retaliatory purpose despite alleging an assumedly

sufficient prima facie case.!* Jd.

Prima facie Title VII and PHRA claims of retaliation require facts sufficient to allege “(1)

that [the employee] 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.” Daniels v. School

Dist. of Philadelphia, 776 F.3d 181, 192-93 (3d Cir. 2015) (addressing Title VII, PHRA, and ADEA

retaliation claims as one under the McDonnell Douglas framework) (cleaned up). All three

elements of a prima facie case in Title VII and PHRA claims are identical to three of the four

elements addressed by the Commonwealth Court in the previous adjudication. Allen I, 2023 WL

7521106, at *3.

Although this would typically suggest that Allen’s claim of retaliation stemming from her

participation in her co-worker’s sexual harassment/assault claim against SCI Somerset is barred

18 The Commonwealth Court’s methodology similarly reflects the McDonnell Douglas framework that is applicable

to Title VII and PHRA claims at later stages of litigation. See Dreibelbis, 438 F.Supp.3d at 315 (“(C]onsideration of

burden-shifting is inappropriate at the motion to dismiss stage.”); James, 189 F.Supp.3d at441 (“If the employee

establishes [a] prima facie claim, the McDonnell Douglas approach applies, shifting the burden to the employer to

advance a legitimate, non-retaliatory reason for its conduct. . . If the employer provides such a reason, the plaintiff

must then be able to convince the factfinder both that the employer’s proffered explanation was false, and that

retaliation was the real reason for the adverse employment action.”’).

24

by issue preclusion, Allen asserts a factual allegation that was not adjudicated in the prior

proceeding. Namely, Allen sets forth that when she lost her keys, an “Officer said they, were

planning to get rid of her because of the fact that she stood by fellow security officer, Christy

Lambert, in her sexual harassment/assault case.” ECF No. 1, § 15 (internal quotation mark

omitted). Because SCI Somerset failed to articulate how this issue was taken into account in a

court of record’s earlier decision, the issue as to whether this assertion supports a finding that

pretextual retaliation occurred cannot be said to have been previously adjudicated by a court of

record, preventing issue preclusion from barring Allen’s claim of retaliation currently before this

Court—relative to her participation in her co-worker’s sexual harassment/assault claim against

SCI Somerset. Cf Thomas, 2013 WL 1195115, at *6 (holding that a new factual allegation, made

by an individual without supervisory or managerial authority which alone was not sufficient to

establish a prima facie employment discrimination claim, did not change the applicability of issue

preclusion where all of the other issues raised before the federal district court were identical to

those raised in state court); see also Witkowski v. Welch, 173 F.3d 192, 198 n.8 (3d Cir. 1999)

(contrasting claim and issue preclusion by stating that “claim preclusion gives dispositive effect to

a prior judgment if the particular issue, albeit not litigated in the prior action, could have been

raised” whereas “issue preclusion (or collateral estoppel), bars relitigation only of an issue

identical to that adjudicated in the prior action.”).

In addition to alleging that she “was discharged d[ue] to retaliation . . . because [SCI

Somerset] discharged [her] after learning of her participation in a sexual harassment/assault claim

against [SCI Somerset],” ECF No. 1, § 19, Allen alleges that SCI Somerset terminated her

“employment, the most severe adverse employment action, in retaliation for her reports of a

sexually hostile work environment.” ECF No. 1, { 53. In its blanket request that the Court apply

25

issue preclusion and dismiss all of Allen’s claims with prejudice, ECF No. 10, p. 8, SCI Somerset

failed to specify how a prior adjudication of the issues of fact or law necessary to allege a prima

facie claim of retaliation under Title VII or the PHRA would bar Allen’s alternate claim of

retaliation based upon Allen’s filing reports of sexual harassment beyond attaching the

Commonwealth Court’s decision, wherein the Commonwealth Court only addressed Allen’s

retaliation claims relative to her participation as a witness in Lambert’s sexual harassment claim.

See Allen I, 2023 WL 7521106, at *1, 5; see also ECF No. 10. As such, SCI Somerset has failed

to carry its burden of proving the application of issue preclusion to Allen’s alternative theory of

retaliation, namely whether her termination was in retaliation for reports of sexual harassment.

See Ogrod, 598 F.Supp.3d at 277 (quoting Dici, 91 F.3d at 548-49); see also Greenway Center,

Inc., 475 F.3d at 147. Because Allen has introduced issues not previously adjudicated and SCI

Somerset failed to carry its burden and declined to address the merits of this claim in its Motion to

Dismiss, ECF No. 9, the Court need not conduct further analysis as to Allen’s Title VII and PHRA

retaliation claim at this time.

The Court will DENY SCI Somerset’s Motion to Dismiss, ECF No. 9, regarding Allen’s

Title VII and PHRA retaliation claim.

iv. Count IV: Wrongful Termination in Violation of Public Policy

While SCI Somerset requests that this Court apply issue preclusion and dismiss all of

Allen’s claims with prejudice, ECF No. 10, p. 8, SCI Somerset failed to specify how issue

preclusion would bar Allen’s wrongful termination claim due to a prior adjudication of the issues

of fact or law necessary to allege a prima facie claim of wrongful termination in violation of public

policy beyond generally arguing that the Commonwealth Court determined that SCI Somerset did

not engage in “wrongful termination based on sex discrimination,” citing a portion of the

96

Commonwealth Court’s decision wherein the court explains that Allen failed to rebut the

legitimate, non-discriminatory reasons SCI Somerset provided. See ECF No. 10, p. 7; ECF No. 9-

2, pp. 7-8; Allen I, 2023 WL 7521106, at *4. This generalized reference does not satisfy SCI

Somerset’s burden of proving the application of issue preclusion to Allen’s wrongful termination

in violation of public policy claim as SCI Somerset has only alleged a final adjudication of Allen’s

termination as it relates to sex discrimination rather than a final adjudication of Allen’s termination

as it relates to public policy, specifically. See Ogrod, 598 F.Supp.3d at 277 (quoting Dici, 91 F.3d

at 548-49): see also Greenway Center, Inc., 475 F.3d at 147. Because SCI Somerset failed to carry

its burden and declined to address the merits of this claim in its Motion to Dismiss, ECF No. 9, the

Court need not conduct further analysis at this time.

The Court will DENY SCI Somerset’s Motion to Dismiss, ECF No. 9, regarding Allen’s

wrongful termination in violation of public policy claim.

IV. Conclusion

The issues of law or fact decided by the Commonwealth Court and the State Civil Service

Commission when adjudicating Allen’s disparate treatment claim are identical to the issues

presented by the fourth element of Allen’s sex discrimination claim under Title VII and PHRA. As

such, the prior adjudication forecloses Allen’s ability to prove a required prima facie element of

her sex discrimination claim. Because: (1) the prior adjudications foreclose Allen’s ability to prove

a required prima facie element of her sex discrimination claim, (2) Allen failed to allege new

evidence which had material bearing upon her pretextual sex discrimination claim, and (3) Allen

had a full and fair opportunity to litigate the issue of pretext, Allen’s sex discrimination claim under

Title VII and the PHRA is barred by issue preclusion. Thus, the Court will GRANT SCI Somerset’s

Motion to Dismiss, ECF No. 9, regarding Allen’s Title VII and PHRA sex discrimination claim

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and will dismiss this claim with prejudice due to futility. See Phillips v. Cnty. Of Allegheny, 515

F.3d 224, 245 (3d Cir. 2008); Thomas, 2013 WL 1195115, at *6.

Because SCI Somerset failed to carry its burden of proving the application of issue

preclusion to both Allen’s hostile work environment claim and her claim of wrongful termination

in violation of public policy, the Court will DENY SCI Somerset’s Motion to Dismiss, ECF No. 9,

regarding Allen’s hostile work environment claim and her claim of wrongful termination in

violation of public policy.

Because SCI Somerset failed to prove that the factual allegation Allen raised in support of

her retaliation claim and her alternative theory of retaliation were previously adjudicated, it failed

to carry its burden of proving that Allen’s retaliation claim is barred by issue preclusion. Thus, the

Court will DENY SCI Somerset’s Motion to Dismiss, ECF No. 9, regarding Allen’s Title VII and

PHRA retaliation claim. An appropriate order will follow.

Date: Mi 4) aS

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‘S@ghanieL. Haines —~=S*~S~*~*~S

United States District Judge

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