Petition for Writ of Certiorari — NRA Group, LLC, Petitioner v. Nicole Durenleau, et al.

No.

26-____

__________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________________________

NRA GROUP, LLC,

Petitioner,

v.

NICOLE DURENLEAU AND JAMIE BADACZEWSKI,

Respondents.

_____________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

_________________________________________________________________

PETITIONER’S APPENDIX – VOLUME II

_________________________________________________________________

Paige Macdonald-Matthes

Counsel of Record

Ivo Becica

Jennifer Bruce

OBERMAYER REBMANN

MAXWELL & HIPPEL LLP

200 Locust Street, Suite 400

Harrisburg, PA 17101

(t) 717-234-9730

pmm@obermayer.com

Counsel for Petitioner

Dated: February 6, 2026

__________________________________________________________________

TABLE OF CONTENTS

PETITIONER’S APPENDIX VOLUME II

Memorandum of the United States District Court for the

Middle District of Pennsylvania

Granting Respondents’ Motion for

Summary Judgment, filed December 19, 2023 ………… 87a

Judgment in a Civil Action issued by the

United States District Court for the Middle District

of Pennsylvania, entered December 19, 2023 ………… 143a

Decision (Sur Petition for Rehearing) of the

United States Court of Appeals

for the Third Circuit,

entered November 10, 2025………………………………..… 144a

Part One of the Statement of Undisputed Material Facts

Submitted by NRA to the United States District Court for

the Middle District of Pennsylvania, in Support of its

Motion for Partial Summary Judgment,

Filed on May 15, 2023 (Paragraphs 1-170)……...…… 146a

87a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NRA GROUP, LLC,

Plaintiff,

v.

NICOLE DURENLEAU and

JAMIE BADACZEWSKI,

Defendants/

Counterclaim Plaintiffs,

v.

NRA GROUP, LLC, STEVE KUSIC,

and SHELL SHARMA,

Counterclaim Defendants.

: Civil No.

: 1:21-CV: 00715

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: Judge Jennifer P.

: Wilson

MEMORANDUM

Before the court is a motion for partial summary

judgment filed by NRA Group (“NRA”) (Plaintiff and

counterclaim Defendant), Steve Kusic (“Kusic”) and Shell

Sharma (“Sharma”) (counterclaim Defendants), and a

motion for summary judgment filed by Nicole Durenleau

(“Durenleau”) and Jamie Badaczewski (“Badaczewski”)

(Defendants and counterclaim Plaintiffs). (Docs. 158, 161.)

In its amended complaint, NRA alleged that Defendants

Durenleau and Badaczewski committed violations of the

Computer Fraud and Abuse Act (“CFAA”), both the federal

and state trade secrets act, breach of common law duty of

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loyalty, civil conspiracy, and fraud. (Doc. 8.) In their

amended answers, Durenleau and Badaczewski allege they

were subjected to various forms of sex-based harassment

under Title VII and the Pennsylvania Human Relations Act

(“PHRA”). (Docs. 142, 143.) In its motion for summary

judgment, NRA argues that there are no genuine issues of

material fact, and it is entitled to judgment as a matter of

law on both the claims it raises in the amended complaint

and the counterclaims against it. In their motion for

summary judgment, Durenleau and Badaczewski argue

there are no genuine issues of material fact, and they are

entitled to judgment as a matter of law on NRA’s claims

against them. For the reasons that follow, the court will

grant Durenleau and Badaczewski’s motion for summary

judgment, and grant in part and deny in part NRA, Kusic,

and Sharma’s motion for summary judgment.

FACTUAL BACKGROUND AND PROCEDURAL

HISTORY1

NRA is an “accounts receivable management

company.” (Doc. 174, ¶ 1.) Kusic is, and was at all relevant

times, the Chief Executive Officer of NRA. (Doc. 162-8, ¶ 1.)

Sharma is, and was at all relevant times, the Chief

Operating Officer of NRA. (Doc. 174, ¶ 411.) Durenleau

started working at NRA on September 15, 2014, as a

1 In considering the cross-motions for summary judgment, the court

relied on Doc. 174 which includes NRA’s statement of material facts

(Doc. 161-5) along with Durenleau’s and Badaczewski’s responses to

these facts. The combined nature of this document made it easier for

the court to determine whether and to what extent facts were

disputed. In accordance with the relevant standard for deciding a

motion for summary judgment, the court relied on the uncontested

facts, or where the facts were disputed, viewed the facts and deduced

all reasonable inferences therefrom in the light most favorable to the

nonmoving party. See Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 362

(3d Cir. 2008).

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collector. (Id. ¶¶ 430–31.) During her time at NRA,

Durenleau was promoted from a collector to client services

representative, support services and consumer resolution

team lead, assistant manager, compliance manager, and

finally, in 2021, she was promoted to senior manager of

compliance services. (Id. ¶¶ 431–49.) Badaczewski began

working for NRA on September 14, 2020, as a marketing

employee. (Id. ¶¶ 160, 189.)

A. Facts Relating to Claims Alleged in NRA’s

Amended Complaint

NRA has multiple layers of security for its computer

system, including firewalls, policies against working from

home without a company-issued laptop and VPN, multifactor authentication, and policies against accessing the

computer system from personal devices. (Id. ¶¶ 6–12.)

Further, NRA’s security manual prohibits sharing login IDs

and passwords or imitating another user. (Id. ¶¶ 19, 20.)

NRA’s security manual also forbids storing passwords “in

readable form, in printable or written form or in any

location where unauthorized personnel might discover

them.” (Id. ¶ 22.) NRA also has customer privacy policies,

Fair Debt Collection Practices Act (“FDCPA”) and Health

Insurance Portability and Accountability Act (“HIPAA”)

policies, and workplace policies that prohibit using

company computers for personal use. (Id. ¶¶ 30–37.) NRA

has confidentiality policies, e-mail usage policies, and

internet usage policies, which both Defendants

acknowledged at the time of their hire. The policies contain

possible consequences for violations, including

termination. (Id. ¶¶ 171–208.)

It is undisputed that both Defendants were aware,

generally, of all of these policies, due to the signed

declarations they executed at the beginning of their

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employment. They also admitted multiple times in

depositions that they were aware of such policies. (Doc.

174.)

Durenleau was out of the office from January 4,

2021, through January 13, 2021, on COVID leave. (Id. ¶ 50.)

Durenleau was not given a company computer to access

the computer system at home and could only access her

company e-mail account through her personal cell phone.

(Id. ¶¶ 43, 46.) Durenleau was denied a laptop and access

to the physical office while on COVID leave. (Id. ¶¶ 52, 53.)

On the morning of January 6, 2021, Durenleau’s

supervisor, Lisa Daube, discovered that there was an issue

with one of NRA’s state licenses that needed to be resolved

that day. (Id. ¶¶ 62, 67.) The issue required logging in to

the National Multistate Licensing System & Registry

(“NMLS”). (Id. ¶ 71.) Durenleau controlled portions of

NMLS on behalf of NRA. (Id. ¶ 74.) Daube called Durenleau

to ask for her username and password to NMLS. (Id. ¶ 75.)

Durenleau told Daube she did not remember her

password. (Id. ¶ 79.) Through text messages, Daube asked

Durenleau “can you resend Steve’s [Kusic] access to

NMLS?” and also wrote “I can have Doug sift your emails or

you can share your log on so we can pay this today.” (Id. ¶¶

93, 94.)

Throughout the morning of January 6, when

Durenleau was attempting to assist her superiors in

dealing with this issue, she was texting and calling

Badaczewski, who was at her office. (Id. at ¶¶ 82–95.)

Durenleau provided Badaczewski with her log on

information to the NRA computer, Badaczewski logged in

as Durenleau from her (Badaczewski’s) computer, and

Badaczewski accessed a spreadsheet in Durenleau’s files

containing Durenleau’s passwords. (Id. ¶¶ 103–106.)

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Three minutes after the phone call with Badaczewski,

Durenleau relayed her NMLS credentials to Daube. (Id. ¶

107.)

On the afternoon of January 6, 2021, Kusic sent

Durenleau various emails about this issue. At 12:20 pm,

Kusic wrote,

We have a major compliance issue and it needs to

be resolved today. I can not figure out how to use

NMLS in a short period of time. Please let me know

how YOU are going to get this fixed by the end of

business today. A reminder this is outstanding

since December 16th.

(Doc. 162-1, p. 7.)

At 12:37 pm Durenleau responded, “I went on to

NMLS I don’t see anywhere to pay anything. I don’t have

the papers. I am not sure what to do from home.” (Id. at 8.)

At 12:42 p.m., Kusic responded with the various

outstanding documents and also wrote “[t]his is

outstanding since December 16th, it must be finalized by

the end of business today. How you do it, is your problem.”

(Id.) Less than a minute later, Durenleau responded “[a]ll

of these were uploaded on Wednesday.” (Id. at 9.) Kusic

responded one minute later, “[t]he system says they are

outstanding, as of today. I am not learning NIN'ILS today,

get this License Renewed TODAY!!!” (Id. at 9 (emphasis in

original).) The issue was resolved by 2:14 pm. (Doc. 174, ¶

122.)

On January 7, 2021, Badaczewski again logged in as

Durenleau and emailed the spreadsheet containing

Durenleau’s passwords to Durenleau’s personal email

account and then to her work email account. (Id. ¶¶ 139,

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155.) The password spreadsheet contained “usernames,

passwords and other credentials” for the various web

portals that NRA used in its debt collection business. (Id. ¶

219.) These portals contain personal information of

consumers “including names, dates of birth, social security

numbers, utility bills, medical bills, financial account

information, and other information.” (Id. ¶ 220, 228.)

The spreadsheet also contained NIN'ILS credentials

for Durenleau, Kusic, and his wife, Jill Kusic.2 (Id. ¶ 317.)

These credentials allow access to a portal containing

personal information regarding the Kusics, such as social

security numbers, dates of birth, address, telephone, email, background checks and credit reports. (Id. ¶ 322.)

On January 22, 2021, Durenleau sent an e-mail to

supervisors at NRA regarding moving accounts out of the

compliance “workgroup.”3 (Id. ¶ 361.) This email

prompted her supervisor, Lisa Daube, to ask Durenleau

what she meant by the email. (Id. ¶ 362.) The two had a

meeting where Durenleau explained her concerns and

gave an example. (Id. ¶¶ 364, 365.) Daube did not agree

with the concern Durenleau raised or her example of

moving accounts. (Id. ¶ 366.)

NRA conducted an audit of account movement in

January 2021. (Id. ¶ 367.) Anita Schaar (“Schaar”), Director

2 Jill Kusic is a co-owner and head legal counsel of NRA. (Id. ¶ 316.)

“NRA uses workgroups to identify whether a collection action

belongs to a specific employee for purposes of bonuses and

commissions.” (Id. ¶ 345.) In order to receive a bonus at NRA, an

employee had to “do something” on an account. (Id. ¶ 343.) What

exactly this “something” amounts to is unclear from the record. It is

undisputed that Durenleau moved accounts into her “workgroup” so

that she could receive a bonus regarding these accounts. (Id. ¶¶ 352,

353.)

3

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of Internal Controls, performed the audit. (Id. ¶¶ 367–69.)4

The audit showed that Durenleau moved 146 accounts

that month, and eleven had been moved after payment was

received. (Id. ¶¶ 382, 383.) This troubled Schaar because

she believed there was no further work to be done on these

accounts, and by moving them, Durenleau would be

credited for a bonus on an account that had no further

work to be done. (Id. ¶ 378, 381.) However, Durenleau

testified there could be additional work done after

payment was received. (Doc. 161-7, pp. 35–36.)5

Durenleau testified she did work on these accounts and

moving these accounts was permitted because she had

different “ground rules” than the collectors. (Doc. 161-7, p.

34; Doc. 161-19, p. 33; Doc. 162-15.) While Schaar was

performing the audit, Durenleau called Schaar asking if she

did something wrong. (Doc. 174, ¶ 387.) Various

employees testified that they considered what Durenleau

did to be fraud and/or theft. (Id. ¶¶ 390–397.) Durenleau

moved a total of $3,042.85 in payments in January 2021.

(Id. ¶ 358.) Durenleau received a corrective action on

February 2, 2021, outlining the allegedly fraudulent

activity, and warning Durenleau that she would be

terminated with her next violation, but she was not

terminated at that time. (Id. ¶¶ 758–60.)

B. Facts Relating to Durenleau’s Harassment

Claims

Within one year of her hire in 2014, in a one-on-one

meeting in a conference room, Kusic “suggested that Kusic

and Durenleau picture each other naked to assist with

Durenleau’s fear of public speaking.” (Doc. 174, ¶ 461.)

4 Schaar’s credibility is disputed because she does not have firsthand

knowledge of how bonusing works at NRA. (Id. ¶¶ 377–84.)

5 For ease of reference, the court utilizes the page numbers from the

CM/ECF header.

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Kusic made comments multiple times to Durenleau, stating

“oh here’s the blonde again” and “I’m talking to a blonde,”

referencing her hair color at the time and implying she was

dumb. (Id. ¶ 462.) Around 2016 or 2017, Kusic referenced

another employee who went skinny dipping with him and

speculated whether Durenleau would do the same. (Id. ¶¶

467, 568.) Durenleau immediately reported this comment

to Sharma, who took no action regarding it. (Id. ¶ 469.)

Sometime between 2014 and 2016, Tasey Leitzell,

an HR employee, Schaar, and Sharma joked in Durenleau’s

presence that Durenleau should sleep with Kusic so that

Kusic would stop bothering them. (Id. ¶¶ 475, 476.)

Durenleau responded to this statement by laughing and

stating “that would be disgusting[,]” “[he] can’t afford

me[,]” and “I would never take anything from [Kusic] to

blow him or to screw him.” (Id. ¶¶ 481–83.)

Between 2016 and 2019, Kusic asked Durenleau

“how well does your man have it at home.” (Id. ¶ 486.)

Sometime in 2017 or 2018, Kusic wiped a cheese curl over

Durenleau’s lips and gave her a “funny look.” (Id. ¶ 492.) In

2019, there was a malware incident at NRA and employees

openly speculated that it was because Kusic was watching

pornography in his office. (Id. ¶ 499.)

On an unspecified date, Sharma relayed comments

to Durenleau that other people were making about her

clothing. (Id. ¶ 504.) The content of these comments is

disputed, as NRA, Kusic, and Sharma characterize the

comments as Sharma telling Durenleau that an HR

employee thought her “pants were too tight or her skirt

was too short,” and Durenleau claims Sharma told her

“how [she was] a whore and, you know, your pants are too

tight, or your skirt’s too short.” (Id. ¶ 504.)

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In 2015 or 2016, Sharma made several comments

regarding another employee’s weight including that she

focused on food more than work, that this employee’s desk

would need cleaned from being full of food and made faces

insinuating this employee was fat. (Id. ¶¶ 511–16.) Sharma

made multiple comments during Durenleau’s employment

about how large a female employee’s breasts were. (Id. ¶

529–26.)

Throughout Durenleau’s entire employment at

NRA, fellow employee Tasey Leitzell would comment

loudly in her office “[i]f these trifling bitches would learn

how to swallow, we wouldn’t have to pay for their

welfare[]” and “I’m so over this job; having to clean the

bathroom up after people; and then bitching about their

welfare.” (Id. ¶¶ 552–53.)

In 2020, Sharma made comments in Durenleau’s

presence about a female employee he was sexually

interested in. (Id. ¶ 528.) Also in 2020, after Durenleau

interviewed Badaczewski, Durenleau, Sharma, and the

head of HR met regarding whether they should hire

Badaczewski. (Id. ¶¶ 543, 546.) During this meeting, one of

the two men commented that Badaczewski was the type of

girl Kusic liked. (Id. ¶ 548.) In response, Durenleau stated,

“you guys are gross [. . .] I could get her before you.” (Id. ¶

549.) Either Sharma or the head of HR requested that

Durenleau record any sexual relations between her and

Badaczewski and send it to them. (Id. ¶ 550.)

Durenleau testified that every day Sharma would

put his arm around her hip or shoulder in greeting. (Id. ¶¶

561–62.) He also gave her shoulder and neck rubs. (Id. ¶

565.) Once, while Sharma had his arm around Durenleau,

he “brushed down [Durenleau’s] back and brushed over

[her] butt.” (Id. ¶ 567.) Durenleau did not tell Sharma not

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to hug her, but she did report this incident to HR. (Id. ¶

566.)

On November 20, 2020, Durenleau was in her office

with several of her direct reports on speaker phone with a

co-worker in another office building who was complaining

about a different co-worker. (Id. ¶¶ 577, 579.) Sharma

walked down the hall and witnessed the end of the

conversation. (Id. ¶ 582.) Sharma then entered

Durenleau’s office, directed her direct reports to leave, and

closed the door. (Id. ¶ 586.) While discussing the

appropriateness of criticizing other co-workers in front of

her direct reports, Sharma slapped Durenleau on the face.

(Id. ¶¶ 595.) He then said “I’ll take care of it on Monday”

and abruptly left. (Id.)

Durenleau reported the incident to in-house

counsel later that day, who advised her to write everything

down. (Id. ¶¶ 597–98.) Durenleau handwrote a statement

that night and then emailed it to in-house counsel on

Monday. (Id. ¶¶ 600–01.) After receiving the statement, in

house counsel emailed Durenleau theorizing that this

complaint arose from Durenleau feeling insecure in her job

and suggested how “a feeling of job insecurity could lead

to interpreting a paternalistic pat on the cheek that felt a

bit more firm than usual, followed by a quick departure.

But, that interpretation appears to have been mistaken.

Your job is secure.” (Doc. 174-8, p. 2.) Durenleau reported

this incident to the Camp Hill Police on February 25, 2021.

(Id. at ¶ 641.) Sharma was convicted of criminal

harassment on May 6, 2021. (Doc. 143, ¶ 170.)

Durenleau resigned from NRA on February 21,

2021, and took a position as a permitting and licensing

manager at West Shore Homes. (Doc. 174, ¶ 779.) In her

resignation letter Durenleau stated,

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I have been targeted and harassed at NRA

Group, LLC for some time now. The

harassment was taken to a whole new level

when Shell Sharma slapped me across my face

the end of November last year. Ever since I

made my complaint, I have been targeted to

force me out of my job. Emotionally, I cannot

take this any more, and am therefore

resigning to free myself from this

environment.

(Doc. 161-9, p. 16.)

C. Facts relating to Badaczewski’s Harassment

Claims6

Badaczewski testified that she was subjected to

sexual harassment “all day, every day” during her

employment at NRA, estimating there was at least 120

incidents. (Doc. 174, ¶ 829.) On one occasion, Kusic told

Badaczewski that men liked her because she had big boobs

and blonde hair. (Id. ¶ 833.) Kusic frequently questioned

her intelligence, referencing her blonde hair. (Id. ¶ 834.)

Badaczewski and Kusic would discuss Badaczewski’s sex

life, and Kusic would comment on it. (Id. ¶ 836.)

Badaczewski testified in an interview with a detective

related to this case, “he never touched me, he never made

advances at me. But he made comments about, like, my

body and me having sexual intercourses with men.” (Doc.

The court notes that Plaintiff alleges a multitude of other facts

regarding Badaczewski’s character, such as facts showing that

Badaczewski has a “drinking problem” due to her texting Kusic while

intoxicated and her criminal record reflecting a public intoxication

charge. . The court is not including the extraneous facts alleged by

Plaintiff in this section because they have no bearing on the resolution

of the pending motions.

6

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162-7, p. 19.) On January 28, 2021, Badaczewski emailed

HR regarding Kusic being condescending, not training her,

and insulting her intelligence, and she also told other

supervisors that Kusic was “constantly talk[ing] about me

being blonde and having big boobs.” (Doc. 161-13, pp. 24–

25; Doc. 174, ¶ 866.) Badaczewski allegedly kept a

notebook containing all of the incidents of sexual

harassment, but she no longer knows where that notebook

is. (Doc. 174, ¶¶ 875– 82.)

On March 19, 2021, Badaczewski and Kusic took a

trip to two local candy stores in order to buy candy for

clients and an office event. (Id. ¶ 889.)7 On this trip, Kusic

bought Badaczewski candy and then asked if other guys

buy her as many gifts as he does. (Doc. 161-11, p. 220.)

While they were on this trip, personnel at NRA discovered

that Badaczewski had been the person to log in to

Durenleau’s account on January 6 and 7. (Doc. 174, ¶ 901.)

Upon his return to the office, Kusic became aware of this

fact and decided to terminate Badaczewski’s employment.

(Id.) Badaczewski’s desk was emptied the next day, March

20, 2021. (Id. ¶ 910.) Badaczewski arrived at the office that

day and was presented a corrective action report which

terminated her employment. (Id. ¶ 915.)

D. Procedural History

NRA filed the initial complaint on April 16, 2021,

which named only Durenleau as a defendant, alleging one

count of violation of the CFAA. (Doc.1.) On May 19, 2021,

NRA filed an amended complaint adding Badaczewski and

7 Plaintiff’s counsel quibbles that Badaczewski “falsely” alleged the two

went to “Hershey Park” when they actually went to “Hershey’s

Chocolate World.” (Doc. 161-4, p. 124.) The court notes that these two

locations are next to each other, share a parking lot, and can be

referenced collectively.

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three more CFAA claims, a violation of the Defend Trade

Secrets Act (“DTSA”), a violation of the Pennsylvania

Uniform Trade Secrets Act (“PUTSA”), a civil conspiracy

claim, a breach of common law duty of loyalty claim, and a

fraud claim against Durenleau only. (Doc. 8.) Thereafter,

on June 18, 2021, Durenleau answered the complaint and

raised counterclaims against NRA including a claim of

negligent hiring and retention, alleging various

inappropriate comments made by NRA employees and the

slap incident with Sharma. (Doc. 16.) On July 20, 2021,

Badaczewski answered the complaint, raising one count of

sexual harassment under Title VII, one count of quid pro

sexual harassment under Title VII, and one count of

retaliation under Title VII. (Doc. 24.)

On July 28, 2021, Durenleau filed an amended

answer, alleging one count of sexual harassment under

Title VII, one count of quid pro sexual harassment under

Title VII, and one count of retaliation under Title VII. (Doc.

25.) NRA answered Badaczewski’s counterclaims on

August 10, 2021. (Doc. 31.) NRA answered Durenleau’s

counterclaims on August 17, 2021. (Doc. 33.) Over one

year of highly contentious discovery followed.

Durenleau and Badaczewski were granted leave to

amend their counterclaims on November 10, 2022. (Doc.

141.) Thereafter, on November 10, 2022, both Durenleau

and Badaczewski filed amended answers with

counterclaims, adding Kusic and Sharma as counterclaim

defendants by adding PHRA claims which mirrored the

Title VII claims but also alleged individual liability. (Docs.

142, 143.) NRA, Kusic, and Sharma answered the amended

counterclaims on November 23, 2022. (Docs. 144, 145.)

The parties filed simultaneous motions for

summary judgment on May 15, 2023. (Docs. 158, 161.)

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Both motions have been fully briefed and are now ripe for

disposition.

JURISDICTION AND VENUE

This court has jurisdiction under 28 U.S.C. §§ 1331

because all parties bring claims arising from federal

statutes. This court also has supplemental jurisdiction

over state law tort and PHRA claims under 28 U.S.C. § 1367

because the state law claims are sufficiently related to the

federal claims. Venue is appropriate under 28 U.S.C. § 1391

because all actions or omissions alleged occurred in the

Middle District of Pennsylvania.

STANDARD OF REVIEW

A court may grant a motion for summary judgment

when “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). A dispute of fact is material if

resolution of the dispute “might affect the outcome of the

suit under the governing law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). Summary judgment is not

precluded by “[f]actual disputes that are irrelevant or

unnecessary.” Id. “A dispute is genuine if a reasonable

trier-of-fact could find in favor of the nonmovant’ and

‘material if it could affect the outcome of the case.” Thomas

v. Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294,

300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the

court must view the facts in the light most favorable to the

non-moving party and draw all reasonable inferences in

that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d

280, 288 (3d Cir. 2018) (citing Scheidemantle v. Slippery

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Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d

Cir. 2006)). The court may not “weigh the evidence” or

“determine the truth of the matter.” Anderson, 477 U.S. at

249. Instead, the court’s role in reviewing the facts of the

case is “to determine whether there is a genuine issue for

trial.” Id.

The party moving for summary judgment “bears

the initial responsibility of informing the district court of

the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,’

which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving

party must then oppose the motion, and in doing so “‘may

not rest upon the mere allegations or denials of [its]

pleadings’ but, instead, ‘must set forth specific facts

showing that there is a genuine issue for trial. Bare

assertions, conclusory allegations, or suspicions will not

suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v.

Cent. Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir.

2014)).

Summary judgment is appropriate where the nonmoving 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

of proof at trial.” Celotex, 477 U.S. at 322. “The mere

existence of a scintilla of evidence in support of the

plaintiff’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the

plaintiff.” Anderson, 477 U.S. at 252. “Where the record

taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no genuine issue for

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trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986).

DISCUSSION

The court will first address NRA’s claims against

Durenleau and Badaczewski, on which there are

competing motions for summary judgment. The court will

then

review

Durenleau’s

and

Badaczewski’s

counterclaims, on which NRA, Kusic, and Sharma have

moved for summary judgment.

A. NRA’s Claims

Badaczewski

against

Durenleau

and

The court will begin with Durenleau and

Badaczewski’s motion for summary judgment because the

court’s resolution of their motion will resolve each of these

claims. Durenleau and Badaczewski argue that there is no

evidence supporting any of NRA’s claims, which entitles

them to judgment as a matter of law. (Doc. 160.)

Conversely, NRA argues they are entitled to judgment as a

matter of law because the facts underlying all of the claims

in their amended complaint are undisputed. (Doc. 172.)

1. Computer Fraud and Abuse Act Claims

NRA brings four claims of computer fraud under the

CFAA all relating to the incident on January 6 and 7, 2021

when Durenleau was asked by her superiors to resolve a

work issue while out of the office on COVID leave, without

access to a work computer.8 It is undisputed that

8 Count 1 alleges a violation of 18 U.S.C. § 1030(a)(2)(C). (Doc. 8.)

Count 2 alleges a violation of 18 U.S.C. § 1030(a)(4). (Id.) Count 3

alleges a violation of 18 U.S.C. §1030 (a)(5)(c). (Id.) Count 4 alleges a

violation of 18 U.S.C. § 1030 (a)(6). (Id.)

103a

Durenleau asked Badaczewski to access Durenleau’s

desktop to send Durenleau her passwords in order to

enable Durenleau to resolve this issue. Durenleau and

Badaczewski argue there is no evidence showing they

exceeded their authorized access in violation of the CFAA

because they were both authorized to access NRA’s

computer systems by virtue of their employment,

Durenleau’s position as compliance manager, and the

implicit Demands by supervisors to complete this task.

(Doc. 160, pp. 12–17.) They also argue that there is no

evidence of intent to defraud under subsections (a)(4) and

(a)(6). (Id. at 17–19.) NRA responds that neither

Durenleau nor Badacezwski were authorized to access the

NRA computers because they were not authorized to

access the NRA computer system from their homes, and

Badaczewski’s entry into Durenleau’s desktop was

unauthorized access in contravention of NRA computer

and security policies. (Doc. 172, pp. 8–13.)

The purpose of the CFAA is to “address the growing

problem of computer hacking, recognizing that, ‘[i]n

intentionally trespassing into someone else’s computer

files, the offender obtains at the very least information as

how to break into that computer system.’” United States v.

Nosal, 676 F.3d 854, 858 (9th Cir. 2012); see also DresserRand Co. v. Jones, 957 F. Supp. 2d 61, 613–14 (E.D. Pa.

2013) (analogizing the limitations of the CFAA as akin to

burglary). Additionally, courts within this Circuit have

cautioned that:

The CFAA “remains primarily a criminal statute

designed to combat hacking,” and, as such,

jurisprudential care should be taken not to

“contravene Congress’s intent by transforming a

statute meant to target hackers into a vehicle for

104a

imputing liability to [defendants] who access

computers or information in bad faith.”

Christian v. Lannett Co., No. 16-963, 2018 U.S. Dist. LEXIS

52793, at *16 (E.D. Pa. Mar. 29, 2018) (quoting QVC, Inc. v.

Resultly, LLC, 159 F. Supp. 3d 576, 590 (E.D. Pa. 1990)).

With this background and purpose in mind, the court turns

to the claims at hand.

Because it is the broadest subsection, the court

starts with Count III, alleging a violation of 18 U.S.C. §

1030(a)(5)(C), which provides, “[w]hoever . . . (C)

intentionally accesses a protected computer without

authorization, and as a result of such conduct, causes

damage and loss . . . shall be punished as provided in

subsection (c) of this section.” While “authorization” under

the CFAA has not yet been defined by the Third Circuit,

courts within the circuit have explained that “an employee

is ‘authorized to access a computer when his employer

approves or sanctions his admission to that computer.’”

Teva Pharms. USA, Inc. v. Sandhu, 291 F. Supp. 3d. 659, 670

(E.D. Pa. 2018) (quoting Dresser–Rand, 957 F. Supp. 2d at

617). Further, “those who have permission to access a

computer for any purpose, such as employees, cannot act

‘without authorization’ unless and until their

authorization to access the computer is specifically

rescinded or revoked.” QVC, Inc., 159 F. Supp. at 595.

Indeed, “an employee granted access to a computer

in connection with his [or her] employment is ‘authorized’

to access that computer under the CFAA regardless of his

or her intent or whether internal policies limit the

employee’s use of the information accessed.” ClinMicro

Immunology Ctr., LLC v. PrimeMed, P.C., No. 3:11-CV-2213,

2016 U.S. Dist. LEXIS 88774, at *27 (M.D. Pa. July 7, 2016)

105a

(collecting cases), report and recommendation adopted by

2016 U.S. Dist. LEXIS 99608 (M.D. Pa. July 29, 2016).

It is undisputed that Durenleau and Badaczewski

were authorized to access the NRA computer system by

virtue of their employment with NRA. (Doc. 159, ¶ 8; Doc.

174, ¶ 161.)9 Because both Durenleau and Badaczewski

were authorized to access the protected computer, there is

no violation of 18 U.S.C. § 1030(a)(5)(C), and Durenleau

and Badaczewski’s motion for summary judgment will be

granted as to Count III.

Counts I and II allege violations under §§

1030(a)(2)(C)10 and (a)(4),11 which prohibit unauthorized

access as well as exceeding one’s authorization. The CFAA

defines “exceed[ing] authorized access” as “access[ing] a

computer with authorization and [using] such access to

obtain or alter information in the computer that the

accesser is not entitled so to obtain or alter.” 18 U.S.C. §

1030(e)(6). The recent Supreme Court case Van Buren v.

United States, 141 S. Ct. 1648 (2021), sheds light on the

appropriate interpretation of “exceeds authorized access.”

9 NRA’s argument that Durenleau was not “authorized” to access her

files from home is actually arguing that Durenleau exceeded the

authorization given to her by accessing her files in a manner that is

proscribed by NRA’s computer use policies, as will be explained below.

10 “Whoever . . . (2) intentionally accesses a computer without

authorization or exceeds authorized access and thereby obtains . . . (c)

information from any protected computer . . . shall be punished as

provided in subsection (c) of this section.” 18 U.S.C. § 1030(a)(2)(C).

11 “Whoever . . . (4) knowingly and with intent to defraud, accesses a

protected computer without authorization, or exceeds authorized

access, and by means of such conduct furthers the intended fraud and

obtains anything of value, unless the object of the fraud and the thing

obtained consists only of the use of the computer and the value of such

use is not more than $5,000 in any 1-year period . . . shall be punished

as provided in subsection (c) of this section.” § 1030(a)(4).

106a

In Van Buren, a police officer used a police department

database, which he was authorized to access by virtue of

his employment, to run a license plate search for someone

who had bribed him to do so. Id. at 1652. The United States

argued the phrase:

“is not entitled so to obtain” refers to “the

information not allowed to [be] obtain[ed] in

the particular manner or circumstances in

which he obtained it. The manner or

circumstances in which one has a right to obtain

information . . . are defined by any “specifically

and explicitly” communicated limits to one’s

right to access information.

Id. at 1654–55 (emphasis in original). In contrast,

Van Buren argued that the statute requires a “gates-up-ordown” inquiry, and that since he was authorized to access

the computer, it did not matter that he later used that

access in contravention of department policies. Id. at

1658–59.

The Court adopted Van Buren’s argument and

reasoned that interpreting “authorization” and “exceeding

authorization” to mean “one either can or cannot access a

computer system, and one either can or cannot access

certain areas within the system[]” aligns better with “the

computer-context understanding of access as entry.” Id. at

1658–59. The Court further disavowed relying on

computer use policies as the basis for liability under the

CFAA, because “[i]f the ‘exceeds authorized access’ clause

criminalizes every violation of a computer-use policy, then

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millions of otherwise law-abiding citizens are criminals.”

Id. at 1661.12

Here, Durenleau was authorized to access her

computer and the files within that computer by virtue of

her employment at NRA and having the credentials to

access their computer system. NRA’s argument that she

was not “authorized” to access her computer at home

because NRA computer policies forbid such a practice is

actually arguing that she exceeded her authorized access

by accessing her computer in a prohibited manner. NRA’s

argument is that: Durenleau’s authorization to access the

computer was given to her by virtue of her employment;

NRA does not allow their employees to use their

authorized access in a certain way, i.e. from their homes

without specific equipment; and Durenleau accessed her

computer in a way not authorized by company policy.

Accordingly, accepting NRA’s argument that Durenleau

exceeded authorized access by accessing the computer in

the wrong way would require the court to utilize the

definition of “exceeding authorized use” that the Supreme

Court rejected in Van Buren.

The definitional limitation established in Van Buren

is particularly significant in light of the purpose of the

CFAA. As explained in Dresser-Rand Co.,

12 Other courts have also warned against basing CFAA liability on

violations of internal policies because doing so would “allow[] private

parties to manipulate their computer-use and personnel policies so as

to turn these relationships into ones policed by the criminal law.”

Nosal, 676 F.3d at 860. See also Carnegie Strategic Design Engineers,

LLC v. Cloherty, No. CIV.A. 13-1112, 2014 WL 896636, at *9 (W.D. Pa.

Mar. 6, 2014) (“Plaintiff cannot state a claim under the CFAA by

transforming its employee policies which prohibited the using of the

computer system for anything other than business purposes into a

violation of the CFAA.”)

108a

An analogy to burglary provides clarity to the

limitations of the CFAA: “If a person is invited

into someone’s home and steals jewelry while

inside, the person has committed a crime—but

not burglary—because he has not broken into

the home. The fact that the person committed a

crime while inside the home does not change

the fact that he was given permission to enter.”

Thomas E. Booms, Hacking into Federal Court:

Employee “Authorization” Under the Computer

Fraud and Abuse Act, 13 VAND. J. ENT. & TECH.

L. 543, 571 (2011).

Dresser-Rand Co., 957 F. Supp. 2d at 614. Applying this

burglary analogy here shows why Badaczewski and

Durenleau are not liable under the CFAA. Both had

permission to enter the (metaphorical) home. Instead of

entering the home through the door, they entered through

a window. Conditioning their entry into the home upon

only using the door does not make their subsequent entry

through the window a burglary. It may be a reason to not

invite them back to the home, but it is not a burglary.

Thus, applying the appropriate definition, there is no issue

of material fact regarding whether Durenleau was

authorized to access the computer system, generally, and

her files, specifically. Further, she did not exceed her

authorized access by emailing a work document to her

personal email. Although these actions may have violated

NRA’s computer use policies, she was authorized to access

those files by virtue of her employment. In other words,

Durenleau came in through the window rather than the

door, which is not a violation of the CFAA.

Additionally, NRA argues that Badaczewski exceeded her

authorization by logging into Durenleau’s desktop,

109a

accessing the spreadsheet, and emailing it to Durenleau’s

personal email address because Badaczewski was not

authorized to access Durenleau’s files. (Doc. 163, p. 40.)

NRA argues that no person at NRA explicitly told

Durenleau or Badaczewski to take this course of action,

and thus, Badaczewski’s access of Durenleau’s computer

was unauthorized. (Id. at 34.) While Durenleau was not

explicitly told “share your NRA password and let Jamie

Badaczewski log in to your computer and send you your

passwords,” as NRA seems to think the statute requires,

the context of this incident shows that Durenleau

authorized Badaczewski to access this information.

Durenleau, the senior compliance manager, was at home

sick with COVID, when her superiors brought an urgent

work issue to her attention. She was denied a company

computer to access the computer system at home and

could only access her company e-mail account through her

personal cell phone. In order to solve this issue, she needed

to give her supervisor a password to an online portal. The

CEO of NRA then began emailing Durenleau, emphasizing

that she needed to fix the problem by the end of the day

and that how she did that was her “problem.” Accordingly,

in order to perform her job without the necessary

computing devices, she authorized her co-worker to access

her own files and locate the needed password. The next

day, Durenleau directed Badaczewski to send the whole

spreadsheet. These circumstances are a far cry from the

hacking that the CFAA was enacted to prevent.

While having Badaczewski access Durenleau’s desktop

and send the password spreadsheet may have been a

violation of NRA policies and worthy of an employment

sanction, it is not a violation of the CFAA. Therefore,

neither Durenleau nor Badaczewski accessed a protected

computer without authorization or exceeded their

110a

authorization. As a result, Durenleau and Badaczewski’s

motion for summary judgment will be granted as to Counts

I and II.

Count IV alleges a violation of 18 U.S.C § 1030(a)(6),

which provides:

Whoever . . . knowingly and with intent to

defraud traffics (as defined in section 1029) in

any password or similar information through

which a computer may be accessed without

authorization, if . . . such trafficking affects

interstate or foreign commerce . . . shall be

punished as provided in subsection (c) of this

section.

In the copious briefing in this case, neither party has

provided the court with a definition of “intent to defraud”

as used in the CFAA. However, other courts have held that,

under the CFAA, an intent to defraud “only requires a

showing of unlawful access; there is no need to plead the

elements of common law fraud to state a claim under the

Act.” eBay Inc. v. Digital Point Sols., Inc., 608 F. Supp. 2d

1156, 1164 (N.D. Cal. 2009) (citing Hanger Prosthetics &

Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F. Supp. 2d

1122, 1131 (E.D. Cal. 2008)).

NRA’s argument regarding whether Durenleau and

Badaczewski had an intent to defraud consists of restating

its allegations that Durenleau and Badaczewski were not

authorized to take these actions, pointing to Durenleau’s

statement that giving her NMLS credentials to her

supervisor would have been “dumb” because her

supervisor did not like her, arguing that Badaczewski’s

access to Durenleau’s desktop exceeded Badaczewski’s

authorized access, and arguing that sending the password

111a

spreadsheet in an unencrypted email shows Durenleau

and Badaczewski “knowingly and intentionally exposed

the confidential information [NRA] is entrusted with

protecting, but did so with the clear intent to use the

information to cause [NRA] financial and reputational

harm.” (Doc. 172, pp. 17–19.) NRA also attempts to

support their assertion that Durenleau or Badaczewski

further disseminated the spreadsheet by pointing to

testimony of Sharma, where he speculates that NRA losing

their $10 million cyber insurance coverage six months

after the incident was due to the emailed spreadsheet

because Durenleau was one of the only people who knew

of this coverage and that a recent fraudulently filed

unemployment claim under Kusic’s name was due to the

personal information contained in the spreadsheet. (Id. at

18.)

As explained above, Durenleau and Badaczewski

did not unlawfully access NRA’s computers. There is no

further evidence in the record, beyond Sharma’s

unsubstantiated speculation, showing an intent to defraud

NRA in any way. Speculations are not sufficient to support

summary judgment, and therefore, Durenleau and

Badaczewski’s motion for summary judgment will be

granted as to Count IV. See Jutrowski v. Twp. of Riverdale,

904 F.3d 280, 288–89 (3d Cir. 2018).

2. Trade Secrets Claims

NRA brings one count of violating the DTSA13 and

one count of violating the PUTSA14 on the premise that the

password spreadsheet allowed access to the multiple

online portals utilized by NRA, which contain personal and

13 18 U.S.C. § 1836.

14 12 PA. CON. STAT. § 5306.

112a

confidential information of its customers and consumers.

(Doc. 172, p. 20.) Durenleau and Badaczewski argue that

the password spreadsheet does not contain trade secrets

because the passwords do not have independent economic

value. (Doc. 160, p. 20.) NRA responds that the password

spreadsheet is a trade secret because the passwords on

that spreadsheet would allow access to a “myriad” of

customers’ personal information which has value to cyber

criminals. (Doc. 163, p. 49.)

Because the DTSA and PUTSA protect the same type

of information, the court will consider these claims

together. PharMerica Corp. v. Sturgeon, No. 2:16-CV-1481,

2018 WL 1367339, at *4 (W.D. Pa. Mar. 16, 2018). Under

both the DTSA and PUTSA, a trade secret is “information

that: (a) the owner has taken reasonable means to keep

secret; (b) derives independent economic value, actual or

potential, from being kept secret; (c) is not readily

ascertainable by proper means; and (d) others who cannot

readily access it would obtain economic value from its

disclosure or use.” Id. at *4.

To determine whether information is a trade secret,

a court must consider:

the extent to which the information is known

outside of the owner’s business, the extent to

which it is known by employees and others

involved in the owner’s business, the value of

the information to the owner and his

competitors, the amount of effort or money

expended in developing the information, and

the ease or difficulty with which the

information could be acquired or duplicated by

others. S.I. Handling Systems, Inc. v. Heisley, 753

F.2d 1244, 1256 (3d Cir.1985).

113a

Crown Coal & Coke Co. v. Compass Point Res., LLC, No.

CIVA 07-1208, 2009 WL 891869, at *6–7 (W.D. Pa. Mar. 31,

2009); see also Bimbo Bakeries USA, Inc. v. Botticella, 613

F.3d 102, 109 (3d. Cir. 2010).

Additionally, “[a] compilation of data that has

independent economic value can be protected as a trade

secret.” Synthes, Inc. v. Emerge Med., Inc., 25 F. Supp. 3d

617 (E.D. Pa. 2014). Further, “compilation of customer

data may qualify as a trade secret if it is not readily

obtainable from another source and was generated in such

a fashion that it constitutes intellectual property of the

owner.” Bro-Tech Corp. v. Thermax, Inc., 651 F. Supp. 2d

378, 409 (E.D. Pa. 2009).

Durenleau and Badaczewski rely on State Analysis,

Inc. v. American Financial Services Association, 621 F. Supp.

2d 309 (E.D. Va. 2009), for their argument that passwords

cannot be trade secrets. In State Analysis, defendant, a

former customer of plaintiff, shared its passwords which

accessed plaintiff’s databases, with one of plaintiff’s

competitors. State Analysis, 621 F. Supp. 2d at 314. The

court held that passwords themselves are not information

but rather are a barrier to the information which is

properly called a trade secret. Id. at 321. The court further

reasoned that “[a]lthough the passwords at issue clearly

have economic value . . . , they have no independent

economic value in the way a formula or a customer list

might have.” Id. (emphasis in original).15

15 NRA distinguishes this case by arguing that it applies the Virginia

trade secrets law. However, as with the Pennsylvania trade secrets

law, the Virginia trade secrets law is essentially the same as the federal

trade secrets act. Further, the two cases NRA cited to support its

argument are both from California and apply the California trade

secrets law.

114a

NRA cites two cases for the proposition that

passwords can be trade secrets. (Doc. 163, p. 48.)

However, both of these cases were decided at the motion

to dismiss stage and held that passwords coupled with

other information could state a claim for misappropriation

of trade secrets. PhoneDog v. Kravitz, No. C 11-03474, 2011

WL 5415612 (N.D. Cal. Nov. 8, 2011); TMX Funding, Inc. v.

Impero Techs., Inc., No. C 10-00202 JF (PVT), 2010 WL

2509979, at *3 (N.D. Cal. June 17, 2010). As such, these

cases are not persuasive, and the court will apply State

Analysis, which is more relevant to the analysis here.

The password spreadsheet has no value outside of

the access it gives to the web portals. The information on

the web portals themselves may potentially be trade

secrets, but that information was not shared and is not at

issue here. NRA advances plenty of arguments regarding

the various web portals the passwords access and the

confidentiality of the information therein, but these

arguments do not prove that the passwords have any

independent economic value. Rather, these arguments

show that the spreadsheet itself has no independent value;

the value is in portals that the passwords access.

Accordingly, the password spreadsheet has no

independent economic value and is not a trade secret.

Thus, Durenleau and Badaczewski’s motion for summary

judgment will be granted as to Counts V and VI.

3. Civil Conspiracy

Durenleau and Badaczewski argue they are entitled

to summary judgment on the civil conspiracy claim, Count

VII, because there are no facts supporting malicious intent

for either of them. (Doc. 160, pp. 23–24.) NRA argues that

a conspiracy should be inferred from Durenleau and

Badaczewski’s communications on January 6 and 7, 2021

115a

when they agreed to violate the CFAA, DTSA and PUTSA.

(Doc. 163, p. 65.)

In Pennsylvania, a civil conspiracy requires a

showing of “(1) a combination of two or more persons

acting with a common purpose to do an unlawful act or to

do a lawful act by unlawful means; (2) an overt act done in

pursuance of the common purpose; and (3) actual legal

damage.” Bro-Tech Corp, 651 F. Supp. 2d at 418. Moreover,

“[p]roof of malice, i.e., an intent to injure, is essential in

proof of a conspiracy . . . . Malice requires . . . that the sole

purpose of the conspiracy was to injure the plaintiff,’ and

that this intent was without justification.” Synthes, 25 F.

Supp. 3d at 735–36 (quoting Doltz v. Harris & Assoc., 280 F.

Supp. 2d 377, 389 (E.D. Pa. 2003)). Finally, a civil

conspiracy claim must be based on an underlying tort, and

“only a finding that the underlying tort has occurred will

support a claim for civil conspiracy. Id.

Here, because the court has found that Durenleau

and Badaczewski did not violate the CFAA, DTSA, or

PUTSA, there can be no civil conspiracy to engage in some

type of unlawful activity. Moreover, there is no evidence in

the record demonstrating any intent to harm NRA by their

actions on January 6 and 7, 2021. NRA argues that

Durenleau and Badaczewski’s knowledge of the computer

and confidentiality policies, and then their subsequent

violation of them, show an intent to injure NRA. (Doc. 172,

p. 30.) However, the malice requirement demands that the

only purpose of the conspiracy is to injure the plaintiff.

Synthes, 25 F. Supp. 3d at 736. Here, there is sufficient

evidence that Durenleau and Badaczewski were trying to

help NRA by resolving the licensing issue, despite not

being set up to succeed by NRA. Therefore, Durenleau and

Badaczewski’s motion for summary judgment will be

granted as to Count VII.

116a

4. Breach of Common Law Duty of Loyalty

Durenleau and Badaczewski argue they are entitled

to summary judgment on Count VIII, breach of common

law duty of loyalty, because there is no evidence that they

used the password spreadsheet to compete with NRA.

(Doc. 160, p. 26.) NRA argues that creating and sending the

password spreadsheet was contrary to NRA’s interests,

and that Durenleau’s alleged mishandling of a license issue

was also contrary to NRA’s interests. (Doc. 172, pp. 39–42.)

To prove a claim of breach of the common law duty

of loyalty in Pennsylvania, a plaintiff must show there was

an agency relationship and that:

[1] the defendant negligently or intentionally

failed to act in good faith and solely for the

benefit of plaintiff in all matters for which he or

she was employed; (2) that the plaintiff suffered

injury; and (3) that the agent’s failure to act

solely for the plaintiff’s benefit . . . was a real

factor in bring[ing] about plaintiff’s injuries.

McDermott v. Party City Corp., 11 F. Supp. 2d 612,

626 n.18 (E.D. Pa. 1998). Further, the agent must:

refrain from competing with the principal and

from taking action on behalf of, or otherwise

assisting,

the

principal’s

competitors

throughout the duration of the agency

relationship, as well as . . . not to use property or

confidential information of the principal for the

agent’s own purpose or those of a third party.

Synthes, 25 F. Supp. 3d at 667 (citing

RESTATEMENT (THIRD) OF AGENCY §§ 8.04, 8.05).

117a

Here, there is no evidence that Durenleau or

Badaczewski used this spreadsheet to compete with NRA

at all. As NRA points out, liability for breach of common law

duty of loyalty can also be founded upon using the

principal’s property or confidential information for the

agent’s own purposes or a third party’s. See

RESTATEMENT (THIRD) OF AGENCY § 8.04. However,

there is also no evidence that Durenleau or Badaczewski

used the information in any way other than to resolve the

licensing issue on January 6, 2021, as requested.

NRA argues that the mere creation and sending of

the spreadsheet contrary to NRA policies shows that

Durenleau and Badaczewski acted against NRA’s interests.

However, the evidence of record shows that Durenleau

and Badaczewski were acting in NRA’s interest by trying to

resolve the license issue and did not use the spreadsheet

or the information in it for any other reason than to

complete their job duties.

NRA also argues that Durenleau breached her duty

of loyalty to NRA by failing to respond to a deficiency

notice sent on January 29, 2021, regarding the same

license that was the issue on January 6, 2021. (Doc. 172, p.

41.) This issue is raised in the brief supporting NRA’s

motion for summary judgment and tangentially in the brief

in opposition to Durenleau’s motion. (Doc. 163, p. 73.)

Durenleau argues that this issue is being raised for the first

time on summary judgment, and therefore, should not be

considered by the court. (Doc. 173, p. 23.) NRA argues that

raising this issue for the first time on summary judgment

is appropriate because the license at issue is the same one

the parties were trying to resolve on January 6, 2021, such

that Durenleau had notice that this license was at issue,

NRA requested documents in discovery regarding this

118a

license, and Durenleau could have questioned Sharma

about the license, but chose not to. (Doc. 180, p. 15.)16

Third Circuit precedent dictates that “a claim that

has not been timely raised is waived.” Spence v. City of

Phila., 147 Fed. App’x 289, 291 (3d Cir. 2005). The Third

Circuit has also previously held that a plaintiff should have

moved to amend their complaint during discovery when

discovery produced evidence of an additional claim. Josey

v. John R. Hollingsworth Corp., 996 F.2d 632, 642 (3d Cir.

1993). Here, NRA is not permitted to modify their claims

on summary judgment by changing the factual basis for

one of the claims. If NRA had wanted to base their breach

of duty of loyalty claim on this factual scenario, it could

have filed a motion to amend their complaint, as it

evidently was aware of this situation as early as February

25, 2021. Accordingly, Durenleau and Badaczewski’s

motion for summary judgment will be granted on the

breach of duty of loyalty claim, Count VIII.

5. Fraud

NRA’s final claim is against Durenleau alone and

alleges that she committed fraud against NRA by moving

certain accounts into her workgroup such that she could

receive a bonus based on these accounts. (Doc. 8.)

Durenleau argues that there is no evidence showing that

she acted with knowledge and intent to defraud. (Doc. 160,

p. 27.) NRA responds that she knew the rules for collecting

NRA continuously faults Durenleau and Badaczewski for not

addressing the Wyoming license issue in their briefing; however, this

issue was not raised as support for the breach of duty of loyalty claim

until the summary judgment stage. As the parties filed simultaneous

briefs, it is understandable that Durenleau and Badaczewski did not

address an argument not yet raised. Durenleau and Badaczewski raise

counter arguments in their briefing in opposition to NRA’s motion

16

119a

bonuses and moved accounts into her workgroup after

payment was made, meaning that she did not perform any

work on those accounts entitling her to a bonus. (Doc. 172,

p. 44.)

A fraud claim in Pennsylvania law consists of six

elements:

(1) (a) A misrepresentation or (b) A

concealment; (2) Which is material to the

transaction at hand; (3) (a) Made with

knowledge of its falsity or recklessness as to

whether it is true or false (for a

misrepresentation), or (b) Calculated to deceive

(for a concealment); (4) With the intent of

misleading another into relying on it; (5)

Justifiable reliance on the misrepresentation;

and (6) A resulting injury proximately caused

by such reliance.

SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 205 (3d Cir.

2022). Additionally, “[f]raud consists of ‘anything

calculated to deceive, whether by single act or combination

or by suppression of truth, or suggestion of what is false,

whether it be by direct falsehood or by innuendo, by

speech or silence, word of mouth, or look or gesture.’” Am.

Indep. Ins. Co. v. Lederman, No. CIV.A. 97-4153, 2000 WL

1209371, at *14 (E.D. Pa. Aug. 25, 2000) (quoting Moser v.

DeSetta, 589 A.2d 679, 682 (Pa. 1991)).

NRA argues that it was company policy that an

employee “do something” on an account in order for them

to receive a bonus. It also argues that after the account had

closed, there was no more work to do, so no one could then

receive a bonus on it. Durenleau allegedly transferred

120a

accounts into her work group after they had closed in

order for her to receive a bonus off those accounts.

However, Durenleau has presented sufficient

evidence that different rules applied to her for receiving a

bonus. (Doc. 161-7 p. 34; Doc. 161-19, p. 33; Doc. 162-15,

p. 41.) The only evidence NRA presents to show that

Durenleau knew that moving these accounts was wrong

was when she called Schaar during the audit and asked

whether she did anything wrong. (Doc. 174, ¶ 387.) The

court declines to infer from that statement that Durenleau

admitted guilt, but rather, that she did not know she was

doing something wrong and needed to ask whether she

had made a mistake. Accordingly, there is no evidence

showing that Durenleau acted with knowledge of any

alleged falsity in moving accounts, and she is entitled to

summary judgment as a matter of law on Count IX.

In conclusion, there are no genuine disputes of

material fact, and Durenleau and Badaczewski are entitled

to judgment as a matter of law on the claims raised in the

amended complaint. Accordingly, because judgment will

be entered in favor of Durenleau and Badaczewski, NRA’s

motion for summary judgment on the claims brought in

the amended complaint will be denied. The court will now

consider NRA, Kusic, and Sharma’s motion for summary

judgment regarding the counterclaims brought by

Durenleau and Badaczewski.

B. Durenleau and Badaczewski’s Counterclaims

Against NRA, Kusic, and Sharma

The court now turns to NRA, Kusic, and Sharma’s

motion for summary judgment, arguing that there are no

genuine disputes of material facts, and they are entitled as

a matter of law to judgment in their favor regarding the

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counterclaims raised against them. (Doc. 163.) Durenleau

and Badaczewski argue that there are genuine disputes of

material fact regarding their Title VII and PHRA claims.

(Doc. 173.) The court draws all reasonable inferences in

favor of non-movants, Durenleau and Badaczewski.

Additionally, the court will address the Title VII and PHRA

claims together since, “in an action under Title VII and the

PHRA, the standards under the federal and state statutes

are the same.” Kimes v. Univ. of Scranton, 126 F. Supp. 3d

477, 491 (M.D. Pa. 2015).

Preliminarily, NRA, Kusic, and Sharma argue that

Durenleau and Badaczewski lack standing to bring these

claims because at various times in their respective

depositions, both Durenleau and Badaczewski stated they

are not seeking money from this lawsuit, which shows they

have not suffered an injury entitling them to relief. (Doc.

163, p. 83.) As Durenleau and Badaczewski note, these

statements instead demonstrate that they are not

motivated solely by money in bringing these claims, but

they are still seeking monetary damages. (Doc. 142, p. 50.)

There has been no amended pleading filed and stray

statements in contentious depositions will not deprive

Durenleau and Badaczewski of standing. The court will

now address the substance of both Durenleau and

Badaczewski’s claims.

1. Continuing Violation Doctrine17

Before filing suit in federal court, a plaintiff must

bring a timely charge of discrimination before the EEOC

and obtain notice of her right to sue in order to exhaust her

administrative remedies. Mandel v. M & Q Packaging Corp.,

17 This argument is only applicable with respect to Durenleau’s

claims.

122a

706 F.3d 157, 163 (3d Cir. 2013). In order for a charge to

be timely, a plaintiff alleging discrimination under Title VII

in Pennsylvania must bring an EEOC charge within 300

days after the alleged unlawful employment practice. See

42 U.S.C. § 2000e-5(e)(1); Mikula v. Allegheny Cnty. of Pa.,

583 F.3d 181, 183 (3d Cir. 2009); Watson v. Eastman Kodak

Co., 235 F.3d 851, 854 (3d Cir. 2000). A plaintiff must file a

PHRA claim with the Pennsylvania Human Relations

Commission within 180 days of the discriminatory act. 43

PA. STAT. § 959(h). Here, Durenleau dual filed her EEOC

charge on April 23, 2021; therefore, the limitations period

for Title VII began on June 27, 2020, and on October 25,

2020, for the PHRA claims. (Doc. 161-23, p. 2.)

However, the continuing violation doctrine serves

as an equitable exception to the time bar under Title VII,

allowing courts to consider “discriminatory acts that are

not individually actionable . . . so long as they are linked in

a pattern of actions which continues into the applicable

limitations period.” Mandel, 706 F.3d at 165 (citing

O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir.

2006)). Therefore, a plaintiff must prove that at least one

discriminatory act occurred within the limitations period

and that this alleged wrong “is more than the occurrence

of isolated or sporadic acts.” Kimes, 126 F. Supp. 3d at 492.

To make this determination, courts may consider subject

matter, i.e., “whether the violations constitute the same

type of discrimination,” Mandel, 706 F.3d at 166 n.2, and

frequency, i.e., “whether the acts are recurring or more in

the nature of isolated incidents.” Kimes, 126 F. Supp. 3d at

492. In considering frequency, “courts should consider the

time gap between incidents and the number of incidents

that have occurred in reaching their conclusion.” Oliver v.

Clinical Pracs. of Univ. of Pa., 921 F. Supp. 2d 434, 446 (E.D.

Pa. 2013). Further, “[a]cts that are taken by two different

supervisors, acting independently, over different time

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periods generally demonstrate isolated events rather than

a persistent, ongoing pattern of discrimination.” Id. at 445.

NRA, Kusic, and Sharma argue that many of

Durenleau’s allegations are outside the applicable statute

of limitations and cannot be used to support her claims of

sexual harassment, and the remaining allegations are

insufficient to show severe and pervasive harassment as

required by Title VII. (Id. at 90–105.) Durenleau argues her

allegations are timely under the continuing violation

doctrine because they show a pattern of harassment.

Durenleau alleges the following actions show a

pattern of discriminatory conduct at NRA, beginning in

2014: Kusic suggested they picture each other naked when

assisting Durenleau with public speaking; Kusic would

comment about Durenleau being blond, insinuating she

was stupid; HR employee Tasey Leitzell, Schaar, and

Sharma joked about Durenleau sleeping with Kusic so that

he would stop bothering them; Sharma made various

comments regarding another employee’s weight;

unnamed employees joked that Durenleau should be like a

former employee who Kusic was obsessed with and

allegedly bought a car for; Leitzell, Schaar, Biancha Tatum,

and Kira West joked about “cleaning up the mess after;”

Kusic insinuated he wanted to go skinny dipping with

Durenleau; Kusic asked Durenleau “how well does your

man have it at home;” Kusic swiped a cheese curl over

Durenleau’s lips and gave her a funny look; it was rumored

in the office that a malware incident was due to Kusic

watching porn in his office; Sharma discussed with

Durenleau how another employee wanted to sleep with

him; Sharma stated in Durenleau’s presence that he

wanted to sleep with another employee; after Jamie

Badaczewski’s employment interview, Sharma and the HR

director told Durenleau that if she and Badaczewski had

124a

sex, they should film it and send it to the two men; on

unspecified dates, HR employee Tasey Leitzell used to

make derogatory comments regarding the collection

employees; at various times throughout her employment,

Durenleau and Sharma would give each other neck rubs;

on an unspecified date, Sharma told Durenleau another

employee had an issue with her clothes, relaying the

employee said Durenleau was a “whore” and that her

clothes were too tight and short; on an unspecified date,

Sharma made comments about another employee’s

breasts; and Sharma would greet Durenleau every day

with a hug or arm around the shoulder. Finally, Durenleau

argues this pattern of sexual harassment culminated with

Sharma slapping her on November 20, 2020.

Here, Durenleau has provided evidence that one act

occurred during the limitations period: the November

2020 slap by Sharma. Next, she has shown an ongoing

practice of discrimination. Although not all overtly sexual,

Durenleau alleges many inappropriate sexual and sexbased comments as well as multiple instances of

inappropriate touching which could be interpreted by a

reasonable jury to show a pattern of sexual harassment by

Kusic and Sharma. The incidents mostly involve

Durenleau’s only two supervisors at NRA: Kusic and

Sharma. While the events were perpetrated by two

different supervisors at two distinct time periods, a

reasonable jury could still connect the actions of these

supervisors as one larger pattern because both men were

in upper management at NRA and as such, were

responsible for fostering an environment where this type

of behavior was condoned. Events that do not involve

either Kusic or Sharma, such as Ms. Leitzell’s general

comments about the collection floor, will be excluded from

consideration. Additionally, Durenleau’s gender could be a

substantially motivating factor for the incidents because

125a

many of the comments dealt with her sex life. A reasonable

jury could find that Kusic and Sharma would not have

treated a male employee the same way. In total, the

incidents were also fairly frequent, with a total of 15

incidents over 6.5 years and some occurring on a daily

basis. Accordingly, the court will consider the events

involving either Kusic or Sharma in analyzing whether

NRA, Kusic, and Sharma are entitled to summary judgment

on the hostile work environment claim.

2. Durenleau and Badaczewski’s Hostile

Work Environment Claims

i. Durenleau’s Hostile Work Environment

Claim

Title VII makes it “an unlawful employment

practice for an employer . . . to discriminate against an

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s race, color, sex, or national origin.” 42 U.S.C. §

2000e-2(a)(1). Sexual harassment is discrimination based

on one’s sex. Meritor Savings Bank, FSB v. Vinson, 477 U.S.

57, 65 (1986). Sexual misconduct, such as “[u]nwelcome

sexual advances, requests for sexual favors, and other

verbal or physical conduct of a sexual nature . . .”

constitutes sexual harassment “whether or not it is directly

linked to the grant or denial of an economic quid pro quo,

where ‘such conduct has the purpose or effect of

unreasonably interfering with an individual’s work

performance or creating an intimidating, hostile, or

offensive working environment.’” Id. (quoting 29 CFR §

16041.11(a)(3)).

In order to state a claim for a hostile work

environment, an employee must show “(1) the employee

126a

suffered intentional discrimination because of [her] sex,

(2) the discrimination was pervasive and regular, (3) the

discrimination detrimentally affected the [employee], (4)

the discrimination would detrimentally affect a reasonable

person of the same sex in that position, and (5) the

existence of respondeat superior liability.” Andreoli v.

Gates, 482 F.3d 641, 643 (3d Cir. 2007).

First, the “[o]ffensive conduct need not necessarily

include obvious sexual overtones in order to constitute

unlawful harassment or discrimination.” Hargrave v. Cnty.

of Atl., 262 F. Supp. 2d 393, 412 (D.N.J. 2003) (citing

Andrews v. City of Phila., 895 F.2d 1469, 1485 (3d Cir.

1990)). Instead, only “a showing that [plaintiff’s gender

was] a substantial factor in the harassment, and that if the

plaintiff had been [male] she would not have been treated

in the same manner[]” is required. Aman v. Cort Furniture

Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996).

Next, the workplace at issue must be “permeated

with discriminatory intimidation, ridicule, and insult that

[was] sufficiently severe or pervasive to alter the

conditions of [her] employment and create an abusive

working environment.” Kimes, 126 F. Supp. 3d at 498. In

determining how severe or pervasive the offensive

conduct is, the court must look at the totality of the

circumstances, including the “frequency of the

discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.” Harris v. Forklift Sys., Inc.,

510 U.S. 17, 23 (1993).

Importantly, “[h]ostile environment claims require

both an objective and a subjective showing; the

environment must have been one that not only a

127a

reasonable person would find hostile and abusive, but

which the actual Plaintiff in fact found to be hostile and

abusive.” Pittman v. Cont’l Airlines, Inc., 35 F. Supp. 2d 434,

441 (E.D. Pa. 1999). “A discriminatory abusive work

environment, even one that does not seriously affect

employees’ psychological well-being, can and often will

detract from employees’ job performance, discourage

employees from remaining on the job, or keep them from

advancing in their careers.” Harris, 510 U.S. at 22.

Here, a reasonable jury could find that Durenleau

was discriminated against on the basis of her sex. Many of

the comments made were directly sexual in nature. The

remaining comments were sufficiently related to her

gender, such as Kusic referring to her as a blonde or

Sharma’s comments regarding another employee’s weight,

that a reasonable jury could find that they would not have

been made if Durenleau was a man. Moreover, some of the

comments and the slap, while not overtly sexual, were

done in a “paternalistic” manner, which brings a level of

intimidation that a jury could find would not be used with

a man. Accordingly, a reasonable jury could find that

Durenleau was discriminated against based on her sex.

Next, a reasonable jury could find that the conduct

was severe and pervasive. Durenleau has alleged and

substantiated approximately fifteen incidents over a span

of six and a half years. A fair portion of the conduct was in

the form of mere utterances or jokes in the office, however,

Durenleau does allege and provide evidence that she

experienced unwanted touchings in the daily hugs by

Sharma, neck rubs, and the slap across the face. There were

no overt sexual overtures, but there were several sexual

comments directed at her or made about others in her

presence. Accordingly, there is a disputed issue of material

fact as to how severe or pervasive the conduct was.

128a

We also must consider whether the workplace was

hostile and abusive from both an objective and subjective

perspective. Here, Durenleau specifically testified that

going to work made her uncomfortable and that she had a

panic attack in 2018 due to her situation at work. (Doc.

161-8, p. 82.) She also spoke with her therapist about

suffering physical and sexual abuse at work. (Doc. 155-1,

p. 12.) Durenleau also references the abuse she

experienced at NRA as a reason for leaving in her

resignation letter, showing that the abusive environment

at NRA discouraged her from remaining in employment.

This is sufficient to show she subjectively viewed her

workplace as hostile and abusive.

Additionally, a reasonable person in the same

situation would also find the environment at NRA hostile

and abusive. The evidence of record shows an office

environment

where

supervisors

freely

made

inappropriate or sexually charged comments to their staff

with no accountability. A reasonable jury could find this

environment hostile and abusive.

The final element of a hostile work environment

claim is vicarious liability. “An employer is subject to

vicarious liability to a victimized employee for an

actionable hostile environment created by a supervisor

with immediate (or successively higher) authority over the

employee.” Faragher v. City of Boca Raton, 524 U.S. 775,

807 (1998). When there is no employment action taken,

employers may avail themselves of an affirmative defense,

where they must show they “exercised reasonable care to

prevent and correct promptly any sexually harassing

behavior” and “the plaintiff employee unreasonably failed

to take advantage of any preventative or corrective

opportunities provided by the employer or to avoid harm

129a

otherwise.” Id. This defense is “unavailable when the

supervisor in question is the employer’s proxy or alter

ego.” O’Brien v. Middle East Forum, 57 F.4th 110, 119 (3d

Cir. 2023.) A supervisor is an employer’s “proxy” when

they are “high enough in the management hierarchy that

his actions ‘speak’ for the employer . . . he may be

considered the employer’s alter ego.” Id. at 121.

NRA, Kusic, and Sharma raise a Faragher/Ellerth

defense by arguing that Durenleau did not utilize the

sexual harassment complaint system NRA had in place.

(Doc. 163, pp. 105–10.) Durenleau argues that the

Faragher/Ellerth defense is inapplicable in this case

because the two people she is alleging sexually harassed

her are proxies for NRA. (Doc. 176, p. 98.)

Here, there was no employment action taken

against Durenleau because she resigned. It does not

appear that Kusic was ever Durenleau’s direct supervisor,

although at all times he was the CEO. Sharma was either

her immediate supervisor or a successively higher

supervisor and also the COO. (Doc. 174, ¶ 411.) Kusic and

Sharma are proxies of NRA because they are sufficiently

high in the management structure that their actions could

be said to speak for NRA.

Therefore, the Faragher/Ellerth defense is unavailable,

and NRA is subject to vicarious liability. In conclusion,

there are disputed issues of material fact such that a jury

must decide these questions. NRA, Kusic, and Sharma’s

motion for summary judgment as to Counts I and IV of

Durenleau’s counterclaims will be denied.

ii.

Badaczewski’s

Environment Claim

Hostile

Work

130a

NRA, and Kusic only raise the Fargher/Ellerth defense

arguing that Badaczewski did not utilize the sexual

harassment complaint system NRA had in place. (Doc. 163,

p. 131.)18 As noted above, the Faragher/Ellerth defense is

not available to employer proxies. As Kusic was

Badaczewski’s direct supervisor and CEO, a reasonable

jury could find that he was a proxy of NRA. Therefore, NRA

is subject to vicarious liability for Badaczewski’s hostile

work environment count, Counts I and IV, and Kusic’s

motion for summary judgment on Badaczewski’s hostile

work environment claim will be denied.

3. Quid Pro Quo Sexual Harassment

The Third Circuit has adopted the test set out by 29

C.F.R. § 1604.11(a)(1) and (2) for the elements of a quid

pro quo sexual harassment claim, which provides:

Unwelcome sexual advances, requests for

sexual favors, and other verbal or physical

conduct of a sexual nature constitute sexual

harassment when (1) submission to such

conduct is made either explicitly or implicitly a

term or condition of an individual’s

employment [or] (2) submission to or rejection

of such conduct by an individual is used as the

basis for employment decisions affecting such

individual . . . .

29 C.F.R. § 1605.11(a)(1), (2).

18 The court notes that there is no evidence in the voluminous record

of when Badaczewski filed her EEOC charge. There is evidence that

Badaczewski received a right to sue letter on June 29, 2021. (Doc. 244, p. 2.) However, NRA does not dispute the timeliness or even the

substance of Badaczewski’s hostile work environment claim.

Accordingly, that count will proceed past summary judgment.

131a

An employee does not need to be threatened with or

experience economic or tangible discrimination, but the

“sexual advances must be sufficiently severe as to alter the

employee’s ‘compensation, terms, conditions or privileges

of employment,’ or to ‘deprive or tend to deprive [him or

her] of employment opportunities or otherwise adversely

affect his [or her] status as an employee.’” Robinson v. City

of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997) (citing 42

U.S.C. §§ 2000e-2(a)(1), (2)). The employee must establish

a causal link showing that their “response was in fact used

thereafter as a basis for a decision affecting his or her

compensation.” Farrell v. Planters Lifesavers Co., 206 F.3d

271, 282 (3d Cir. 2000). In considering the causal

connection, the court “should not be constrained; rather,

the court can consider circumstantial evidence and draw

inferences in favor of the non-moving party in reaching

this determination on summary judgment.” Id. at 283.

i. Durenleau’s Quid Pro Quo Sexual

Harassment Claim

The substance of Durenleau’s quid pro quo sexual

harassment claim is joking between Tasey Leitzell, Schaar,

and Sharma that Durenleau should sleep with Kusic so that

he would leave them alone. NRA, Kusic, and Sharma argue

Durenleau was not subject to quid pro quo sexual

harassment because the sexual harassment she

experienced was actually a running joke in the office and

no employment benefits were attached to it. (Doc. 163, p.

111.) Durenleau argues that because she did not report

this incident or others, she continued to receive

promotions. (Doc. 176, p. 41.) However, once she reported

the incident where Sharma slapped her, she was “forced

out of her employment.” (Id.)

132a

Here, there is no evidence showing a causal

connection between the “joking” that Durenleau states as

the basis for her claim and any later employment

decisions. Even though different inferences could be

drawn about the fall out from Durenleau reporting

Sharma’s slap, that still does not provide a connection

between any rejection or submission to these “jokes” and

employment decisions made by NRA. Therefore, summary

judgment is granted in favor of NRA, Kusic, and Sharma on

Counts II and V of Durenleau’s counterclaims.

ii. Badaczewski’s Quid Pro Quo Sexual

Harassment Claim

Badaczewski’s quid pro quo sexual harassment

claim is based on the trip to buy candy for the office where

Kusic bought her candy, inquired if other guys buy her as

much stuff as he did, and then she was fired the next day.

NRA and Kusic argue Badaczewski cannot support her

quid pro quo sexual harassment claims because there is no

evidence showing that any sexual advances were tied to a

condition of employment. (Doc. 163, p. 135.)

Here, the evidence supporting Badaczewski’s

claims of Kusic making sexual advances towards her

consists of statements, but Badaczewski has provided no

further details regarding any specific times where these

statements occurred. (Doc. 174, ¶ 829.) Additionally,

Badaczewski points to the candy shopping incident where

she was fired the next day. However, on that trip, there is

no evidence that Badaczewski rebuffed any advance. More

specifically, there is no evidence of her response to his

questions about other men buying her as many things as

he does. There is also sufficient undisputed evidence to

show that the decision to fire her the next day was made

contemporaneously with NRA discovering that

133a

Badaczewski was the one who sent Durenleau the

password spreadsheet. (Doc. 174, pp. 300–08.)

Considering all of the evidence, Badaczewski cannot prove

the causation element of her quid pro quo sexual

harassment claim when there is clear evidence of a

legitimate reason for her termination. Thus, summary

judgment will be entered in favor of NRA and Kusic on

Counts II and V of Badaczewski’s counterclaims.

4. Retaliation Claims

To state a claim for retaliation under Title VII, a

plaintiff must allege that: “(1) she engaged in activity

protected by Title VII; (2) the employer took an adverse

employment action against her; and (3) there was a causal

connection between her participation in the protected

activity and the adverse employment action.” Moore v. City

of Phila., 461 F.3d 331, 340–41 (3d Cir. 2006) (citing

Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir.1995)).

Protected activity ranges from formal charges of

discrimination to “informal protests of discriminatory

employment practices, including making complaints to

management, writing critical letters to customers,

protesting against discrimination by industry or society in

general, and expressing support of co-workers who have

filed charges.” Mufti v. Aarsand & Co., Inc., 667 F. Supp. 2d

535, 552 (W.D. Pa. 2009). To determine whether an

employee has engaged in protected activity, “we look to

the message . . . conveyed [by a plaintiff’s conduct] rather

than the means of conveyance. The complaint must allege

that the opposition was to discrimination based on a

protected category.” Daniels v. Sch. Dist. of Phila., 776 F.3d

181, 194 (3d Cir. 2015) (citations omitted). In undertaking

the protected activity, “the employee must hold an

objectively reasonable belief, in good faith, that the activity

134a

they oppose is unlawful under Title VII.” Moore, 461 F.3d

at 341.

The retaliatory action taken against the employee

must be “‘materially adverse’ in that [it] may well have

dissuaded a reasonable worker from making or supporting

a charge of discrimination.’” Id. (quoting Robinson, 120

F.3d at 1300). Additionally, “a transfer to a less desirable

position or an unsatisfactory job evaluation may constitute

the requisite adverse employment action as to the terms,

conditions, and privileges of employment, but modest

changes in duties or working conditions and actions that

simply make an employee unhappy but not producing a

material disadvantage do not.” U.S. Equal Emp. Opportunity

Comm’n v. Bob Evans Farms, LLC, 275 F. Supp. 3d 635, 659

(W.D. Pa. 2017).

Finally, the causal connection element looks to the

reason for the harassment, and “identif[ies] what

harassment, if any, a reasonable jury could link to a

retaliatory animus.” Id. (quoting Jensen v. Potter, 435 F.3d

44, 449 n.2 (3d Cir. 2006) (overruled in part on other

grounds by Burlington N. & Santa Fe Ry. Co v. White, 548

U.S. 53 (2006)). Temporal proximity can be used to show

a causal connection if it is unusually suggestive. Daniels,

776 F.3d at 196. Absent unusually suggestive temporal

proximity, “we consider the circumstances as a whole,

including any intervening antagonism by the employer,

inconsistencies in the reasons the employer gives for its

adverse action, and any other evidence suggesting that the

employer had a retaliatory animus when taking the

adverse action.” Id.

i. Durenleau’s Retaliation Claim

135a

Durenleau’s retaliation claim includes three types

of retaliatory acts. First, Durenleau alleges she was

retaliated against while still working at NRA by having her

parking space taken away, no longer being permitted to

arrive to work early, being the only manager without a

laptop, being removed from the e-team, being the subject

of false fraud allegations, being forced to work while on

COVID leave, and eventually having a baseless corrective

action report which threatened termination on the next

infraction. (Doc. 142, pp. 41–45.) Second, Durenleau

alleges she was constructively discharged in retaliation for

her report. (Id.) Third, Durenleau alleges she was

retaliated against after her employment ended by the filing

of the instant lawsuit and NRA threatening discrimination

charges. (Id.) On the other hand, NRA argues that

Durenleau was not retaliated against because her report of

the slap incident was not a protected activity, many of the

instances of retaliation she recounts had legitimate

reasons, she voluntarily resigned, and her attorney’s

demand letter was not a protected activity. (Id. at 114–30.)

The court will address each type of retaliatory conduct in

turn.

Turning to the conduct while Durenleau was still

employed at NRA, Durenleau’s emailed statement to in

house counsel regarding the slap incident is protected

activity because it is a complaint to management regarding

Sharma’s actions which could be considered sexual

harassment. Durenleau does not call the incident “sexual

harassment,” but it is clear that she believed the slap was

inappropriate and needed to be reported. Further,

Durenleau made this statement in good faith and believed

the slap was unlawful under Title VII because in the email

she stated, “I want this on file just in case I lose my job, get

demoted or have my pay reduced[,]” and she immediately

reported the incident. (Doc. 162-1, p. 6.) Durenleau’s

136a

actions after the slap show that she knew this incident was

something out of the ordinary and that she needed to get

NRA’s legal counsel involved. Drawing all reasonable

inferences in favor of Durenleau, a reasonable jury could

find that she was reporting an act of sexual harassment,

making this email a protected activity.

Next, having her parking space taken away, not

being allowed to go to work early, and being denied a work

laptop, taken in totality with Daube’s comment that “once

you stiff him [Sharma], you’re done” and the corrective

action report for the allegedly fraudulent transfer of

accounts wherein she was warned that her next violation

would result in termination of her employment, is an

adverse employment action which would dissuade a

reasonable employee from filing a formal charge of

discrimination. These actions, which marked a change in

how she had operated at NRA, all occurred after she

reported the November 2020 slap. Drawing all reasonable

inferences in favor of Durenleau, a reasonable jury could

find that these changes collectively rise to the level of a

materially adverse employment action.

NRA provides non-discriminatory reasons for these

decisions, but Durenleau alleges that these reasons are

merely pretext because of the comment “once you stiff

[Sharma], you’re done.” Further, Durenleau points to past

employees who complained about the working

environment of NRA and were also threatened with a

lawsuit. This is sufficient to create a disputed issue of

material fact regarding whether Durenleau suffered an

adverse employment action.

Finally, turning to causation, Durenleau argues that

all of the more minor retaliatory actions, as well as the

corrective action report, coupled with Daube’s comments

137a

show retaliatory animus. Daube knew that Durenleau had

made a complaint about Sharma slapping her because she

sat in on the investigation into the incident. (Doc. 161-16,

p. 27.) After this investigation, there was a change in how

NRA treated Durenleau. Some implicit facets of her

employment situation, such as parking near the front and

arriving at work early, were taken away. There was a

corrective action report that was issued approximately

two months after Durenleau reported the slap, the subject

of which was allegedly fraudulent account transfers that

Durenleau did not realize were against the rules. The

timing of these changes is sufficient to create a dispute of

material fact regarding whether they were taken with

retaliatory animus. Therefore, NRA, Kusic, and Sharma’s

motion for summary judgment will be denied regarding

Durenleau’s retaliation claim while she was still employed

at NRA.

Turning to Durenleau’s constructive discharge

claim, an employee must establish “the employer

knowingly permitted conditions of discrimination in

employment so intolerable that a reasonable person

subject to them would resign.” Aman, 85 F.3d at 1084. In

making this determination, the court employs an

“objective standard, requiring no more than a finding that

the conduct complained of would have the foreseeable

result that working conditions would be so unpleasant or

difficult that a reasonable person in the employee’s shoes

would resign.” Goss v. Exxon Off. Sys. Co., 747 F.2d 885, 887–

88 (3d Cir. 1984). The court must consider, “whether the

employee was threatened with discharge, encouraged to

resign, demoted, subject to reduced pay or benefits,

involuntarily transferred to a less desirable position,

subject to altered job responsibilities, or given

unsatisfactory job evaluations.” Colwell v. Rite Aid Corp.,

602 F.3d 495, 503 (3d Cir. 2010). Further, “[a] hostile work

138a

environment ‘will not always support a finding of

constructive discharge.’” Spencer v. Wal-Mart Stores, Inc.,

469 F.3d 311, 317 (3d Cir. 2006) (quoting Marrero v. Goya

of P.R., Inc., 304 F.3d 7, 28 (1st Cir. 2002)). There must be

a greater showing of severity or pervasiveness than in a

hostile work environment claim. Id.

Here, Durenleau was threatened with discharge

through the corrective action report that provided her

next violation would result in termination. Durenleau has

also provided sufficient facts to create a dispute regarding

whether she suffered a hostile work environment, as

previously discussed. Additionally, as discussed above, she

also showed a crackdown on her behavior after reporting

the slap incident with Sharma. Similar to Aman v. Cort

Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir. 1996),

Durenleau has established that she faced a pattern of

discrimination for several years and then faced an uptick

in negative consequences after she reported the clap

incident. A reasonable employee could feel compelled to

quit when confronting these circumstances. Accordingly,

NRA, Sharma, and Kusic’s motion for summary judgment

on Durenleau’s constructive discharge retaliation claim is

denied.

Finally, turning to Durenleau’s retaliation claims

post-resignation, “a plaintiff must show that [s]he engaged

in protected activity, that [her] former employer had

influence over a subsequent employment-related decision,

and that [her] former employer made a retaliatory use of

that influence to the detriment of the plaintiff’s

employment opportunities.” Boandl v. Geithner, 752 F.

Supp. 2d 540, 567 (E.D. Pa. 2010) (citing Charlton v.

Paramus Bd. of Educ., 25 F.3d 194, 200–201 (3d Cir. 1994)).

139a

NRA argues that her criminal complaint and her

attorney’s notice of claims was not a protected activity

because it did not refer to the slap incident as “sexual

harassment.” (Doc. 163, p. 126–27.) However, as we held

above regarding Durenleau’s email, the notice references

the slap incident, which could be sexual harassment, as it

is unlikely that Sharma would slap a male employee. Next,

Durenleau provides evidence that Kusic emailed her

supervisor at her new job, pointing them towards evidence

in this case showing that Durenleau had her boyfriend, a

police officer, check for information on this individual.

(Doc. 173-2, p. 2.) This email was sent the day after she was

terminated by her subsequent employer. (Doc. 161-8, p.

19.) There is no other evidence in the record regarding

why she was terminated from her subsequent position

besides Durenleau’s speculation that someone contacted

her new employer prior to her termination. Durenleau’s

speculation is not sufficient to establish a causal

connection. Therefore, summary judgment is granted in

favor of NRA, Kusic, and Sharma on Durenleau’s postresignation retaliation claim.

In conclusion, NRA, Kusic, and Sharma’s motion for

summary judgment is granted regarding Durenleau’s postresignation retaliation claim but denied regarding

Durenleau’s retaliation claim while at NRA and her

constructive discharge claim.

ii. Badaczewski’s Retaliation Claim

NRA argues that Badaczewski can provide no

evidence of a causal connection for her retaliation claim

where she was terminated for legitimate business reasons.

(Doc. 163, p. 137.) Badaczewski argues that her

termination occurred after Badaczewski made a report to

140a

HR regarding Kusic’s intimidating conduct with her. (Doc.

173, p. 53.)

Here, Badaczewski’s email to HR consisted of

complaints that Kusic made “rude condescending

comments towards me about my intelligence, work ethic,

and ability to grasp something.” (Doc. 161-13, p. 24.) This

email is entirely regarding her ability to perform her job

and makes no reference to any comments that could be

related to her sex in anyway. However, in a subsequent

meeting with HR regarding the email, she told the HR

director and Lisa Daube about Kusic “constantly talk[ing]

about me being blond and having big boobs.” (Doc. 174, ¶

866.) These complaints are sufficiently relating to her sex

that reporting them in the meeting consists of a protected

activity. However, the act of terminating her is not

sufficiently causally connected to these reports to

constitute retaliatory animus. Initially, she sent the email

and had the meeting in January and she was not

terminated until March. Further, her termination is

temporally very close to NRA discovering that she had

been the one who logged into Durenleau’s computer and

sent her the spreadsheet. Therefore, Badaczewski cannot

prove she was retaliated against for her complaints to HR

about Kusic’s potential sexual harassment. Summary

judgment will be granted in favor of NRA and Kusic on

Counts III and VI of Badaczewski’s counterclaims.

5. PHRA Claims against Kusic and Sharma

Individually

i. Durenleau’s Individual Claims

Kusic and Sharma argue that Durenleau’s

individual claims against them fail because they are

untimely, and she fails to show a PHRA violation. (Doc. 163,

141a

p. 130.) First, Durenleau’s claims are timely because the

continuing violation doctrine applies to PHRA claims as

well as Title VII claims. Lesko v. Clark Publisher Svcs., 904

F. Supp. 415, 419 (M.D. Pa. 1995). Here, Durenleau filed her

EEOC and PHRA charge within 180 days after the

November 20, 2020, slap. (Doc. 161-23.) Since the court

held that the continuing violation doctrine applies to the

Title VII claim, it applies to the individual PHRA claims for

the same reasons.

Second, the PHRA establishes liability for

employers for unlawful employment practices, but also

provides that it is unlawful for “any person, employer,

employment agency, labor organization or employe[e], to

aid, abet, incite, compel or coerce the doing of any act

declared by this section to be an unlawful discriminatory

practice . . . .” 43 PA. STAT. § 955(a), (e). Further, “in the

appropriate factual scenario, an individual supervisory

employee can be held liable under an aiding and

abetting/accomplice liability theory . . . for his own direct

acts of discrimination or for his failure to take action to

prevent further discrimination by an employee under

supervision.” Davis v. Levy, Angstreich, Finney, Baldante,

Rubenstein & Coren P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa.

1998) (citing Dici v. Commonwealth of Pa., 91 F.3d 542, 552

(3d Cir. 1996)). The appropriate circumstances to find a

supervisor liable for his own discrimination is when they

“engage[] in discriminatory conduct while acting in the

scope of his employment” because they “share[] the intent

and purpose of the employer and may [properly] be held

liable for aiding and abetting the employer in its unlawful

conduct.” Glickstein v. Neshaminy Sch. Dist., No. 96–6236,

1997 WL 660636, at *12 (E.D. Pa. Oct. 22, 1997).

Here, the aiding and abetting count against Sharma

can proceed because Sharma was Durenleau’s supervisor

at the time of the alleged harassment and the harassment

142a

occurred while at work, in the scope of their supervisordirect report relationship. Further, the individual liability

claim can go forward against Kusic because he is the CEO

of NRA and can be said to “share the intent and purpose”

of the employer. Accordingly, NRA, Kusic, and Sharma’s

motion for summary judgment will be denied as to Count

IV of Durenleau’s counterclaims.

ii. Badaczewski’s individual claims

Kusic argues Badaczewski’s individual claims against

Kusic fail because she fails to show a PHRA violation. (Id.

at 144.) For the same reasons that Durenleau’s claims

against her supervisor will go forward, so will

Badaczewski’s. Kusic’s motion for summary judgment will

be denied as to Count IV of Badaczewski’s counterclaims.

CONCLUSION

Durenleau and Badaczewski’s motion for summary

judgment regarding NRA’s claims against them is granted.

NRA, Kusic, and Sharma’s motion for summary judgment

on Durenleau and Badaczewski’s counterclaims will be

granted in part and denied in part. An order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: December 19, 2023

143a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NRA GROUP, LLC,

Plaintiff,

v.

NICOLE DURENLEAU and

JAMIE BADACZEWSKI,

Defendants

: Civil No.

: 1:21-CV: 00715

:

:

:

:

:

:

:

JUDGMENT IN A CIVIL ACTION

The court has ordered that (check one):

☒ other: Judgment is entered in favor of Nicole

Durenleau and Jamie Badaczeski on Plaintiff/

Counterclaim Defendant NRA Group’s amended

complaint, Doc. 8.

This action was (check one):

☒ decided by Judge Jennifer P. Wilson on a motion of

summary judgment.

Date: 12/23/2023

Peter J. Welsh,

CLERK OF COURT

s/ Kevin J. Neary, Deputy Clerk

Signature of Clerk or Deputy Clerk

144a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 24-1123

_________________

NRA GROUP, LLC

v.

NICOLE DURENLEAU; JAMIE BADACZEWSKI

NICOLE DURENLEAU

v.

NRA GROUP, LLC; STEVE KUSIC; SHELL SHARMA

JAMIE BADACZEWSKI

v.

NRA GROUP, LLC; STEVE KUSIC

NRA GROUP, LLC,

Appellant

(District Court No.1:21-cv-00715)

_________________________

SUR PETITION FOR REHEARING

________________________

Present: CHAGARES, Chief Judge, HARDIMAN, SHWARTZ,

KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS,

FREEMAN, MONTGOMERY-REEVES, CHUNG, BOVE and

145a

MASCOTT, Circuit Judges, and McKEE and AMBRO*,1

Senior Circuit Judges

The petition for rehearing filed by Appellant in the

above-entitled case having been submitted to the judges

who participated in the decision of this Court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

judges of the circuit in regular service not having voted

for rehearing, the petition for rehearing by the panel and

the Court en banc, is denied. Judge Chung voted for

rehearing.

BY THE COURT,

s/ Thomas L. Ambro

Circuit Judge

Dated: November 10, 2025

ARR/cc: All Counsel of Record

* Pursuant to Third Circuit I.O.P. 9.5.3, the votes of Judge McKee and

Judge Ambro are limited to panel rehearing only.

146a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NRA GROUP, LLC,

Plaintiff,

Case No.: 1:21-cv00715-JPW

Judge Jennifer Wilson

vs.

NICOLE DURENLEAU and

JAMIE BADACZEWSKI,

Defendants.

NICOLE DURENLEAU,

Counterclaim

Plaintiff,

vs.

NRA GROUP, LLC, STEVE

KUSIC and SHELL SHARMA,

Counterclaim

Defendants.

STATEMENT OF MATERIAL FACTS IN SUPPORT OF

PLAINTIFF AND COUNTERCLAIM DEFENDANTS’

MOTION FOR PARTIAL SUMMARY JUDGMENT

PART I

UNDISPUTED

FACTS

SUPPORTING

PARTIAL

147a

SUMMARY JUDGMENT ON

PLAINTIFF’S AFFIRMATIVE

CLAIMS

I.

FACTS PERTINENT TO DEFENDANTS’ VIOLATIONS OF THE COMPUTER FRAUD AND

ABUSE ACT (COUNTS I-IV)

A. Background Regarding NRA Group and its Computer Access Restrictions

1.

Plaintiff, NRA Group LLC (“NRA” or “Plaintiff”) is an accounts receivable management company

providing debt collection services, skip tracing, and credit

bureau reporting services in all fifty (50) states. See ECF

No. 8 at ¶ 12; Ex. Z at ¶ 2.

2.

As part of its business, NRA recovers debts

owed to a variety of customers, including health care providers, hospitals, utility companies, and other private businesses. Ex. Z at ¶ 3.

3.

During NRA’s collections activities, it regularly encounters Personal Identifiable Information (“PII”)

for individual consumers who owe money to its customers.

Ex. Z at ¶ 3.

4.

NRA is a federally regulated entity under the

Gramm-Leach-Bliley Act of 1999 (the “GLBA”), as well as

being subject to the requirements of the Health Insurance

Portability and Accountability Act (“HIPAA”) the Fair Debt

Collection Practices Act (“FDCPA”) and the Fair Credit Reporting Act (“FCRA”). Ex. Z at ¶ 4; Ex. FF at “NRA002767.”

5.

In order to protect its computer network,

NRA has established and maintained a network of firewalls

through its IT department and information security consultants. Ex. Z at ¶ 7.

6.

NRA strictly limits access to its computer

systems to employees who are physically within its offices

(where the firewall is in effect) and to employees who have

148a

been issued an NRA laptop with secure access to NRA’s

network via a VPN (virtual private network). Ex. Z at ¶ 8.

7.

Authorized NRA employees with an NRA

laptop can access NRA’s systems through the firewall, via

secure Multi-Factor Authentication (“MFA”). Ex. Z at ¶ 8.

8.

VPN allows employees to work remotely. Ex.

J at 83:24-84:5; Ex. J at “LD-4.”

9.

NRA does not permit any of its employees to

access its system through the open web. Ex. Z at ¶ 9.

10.

NRA does not permit any of its employees to

access its system through mobile devices other than laptops with VPN. Ex. Z at ¶ 9.

11.

NRA does not permit any of its employees to

access its system through their personal devices. Ex. Z at

¶ 9.

12.

In addition, NRA has developed and implemented written data protection and computer use policies

to adequately safeguard the data in its possession, in accordance with the GLBA and other applicable laws. Ex. Z

at ¶ 10.

B. Limitations on Computer Access Outlined in

NRA’s Security Manual (Z-1)

13.

NRA’s Security Manual includes details regarding NRA’s firewalls and network security. Ex. Z-1 (also

marked as “ND 5A” and “JB 9”) at 17-19.

14.

NRA’s Security Manual states that “[a]ny

connection between an in-house NRA production system

and an external computer system, external computer network, or service provider must be approved by NRA’s Security Officer.” Ex. Z-1 at 18.

15.

During her employment with NRA, Defendant Nicole Durenleau (“Durenleau”) did not serve as the

Security Officer for NRA. Ex. Z at ¶ 14; Ex. E at 122:25123:2.

149a

16.

During her employment with NRA, Defendant Jamie Badaczewski (“Badaczewski”) did not serve as

the Security Officer of NRA. Ex. Z at ¶ 14; Ex. E at 122:1921.

17.

NRA’s Security manual states that “[p]rivate

information that is included in an attachment will be password protected and/or encrypted, as required.” Ex. Z-1 at

“NRA0244.”

18.

NRA’s Security Manual states that only authorized company users can access NRA’s systems via VPN,

via the firewall and MFA provided by RSA, a third-party

data security provider. Ex. Z at ¶ 15, Ex. Z-1 at 27.

19.

NRA’s Security Manual states that “[s]haring

of login IDs and passwords is strictly prohibited.” Ex. Z-1

at 5.

20.

NRA’s Security Manual further states that

“[u]sers are not to attempt to receive unintended messages or access information by any unauthorized means,

including imitating another system, impersonating another user, or misuse legal user credentials (usernames,

passwords), etc.” Ex. Z-1 at 7.

21.

NRA’s Security Manual also states that “NRA

users are responsible for all activities performed using

their log-in Ids and therefore, must maintain exclusive

control of their Ids and personal passwords. Users may

not share Ids or passwords with others at anytime or for

any reason.” Ex. Z-1 at 26.

22.

NRA’s Security Manual states that “[p]asswords may not be stored in readable form, in printable or

written form or in any location where unauthorized persona might discover them.” Ex. Z at ¶ 17, Ex. Z-1 at 26.

23.

NRA’s Security Manual is distributed to all

NRA employees during new hire orientation/training and

is reviewed with all employees annually. Ex. Z at ¶ 18.

150a

C. Limitations on Access Outlined in NRA’s Customer Privacy Policy (Z-2)

24.

NRA maintains a Customer Privacy Policy

which all NRA employees must sign as a condition of their

employment. Ex. Z at ¶ 19, Ex. Z-2.

25.

Durenleau received a copy of NRA Group’s

Customer Privacy Policy. Ex. Z-2 at “ND 6.”

26.

On September 15, 2014, Durenleau signed a

copy of the Customer Privacy Policy. Ex. A at 83:5-18; Ex.

Z-2 at “ND 6.”

27.

The Customer Privacy Policy that Durenleau

signed states that employees must “take appropriate

measures to protect the security and integrity of non-public customer information,” including “[n]ot allowing unauthorized use of computer terminals or access of customer

files.” Ex. Z at ¶ 20; Ex. Z-2 at “ND 6.”

28.

On September 14, 2020, Badaczewski

signed a copy of the Customer Privacy Policy. Ex. Z-2 at

“NRA0456-457.”

29.

The Customer Privacy Policy that Badaczewski signed states that employees must “take appropriate measures to protect the security and integrity of

non-public customer information,” including “[n]ot allowing unauthorized use of computer terminals or access of

customer files.” Ex. Z at ¶ 20; Ex. Z-2 at “NRA0456.”

D. Limitations

on

Access

Outlined

in

FDCPA/HIPAA Policy (Z-3)

30.

NRA maintains a Statement of Company Policy Regarding Contact with Consumers, the Fair Debt Collection Practices Act (FDCPA) and the Health Insurance

Portability and Accountability Act (HIPAA) (hereinafter

“FDCPA/HIPAA Policy”), which all NRA employees must

sign as a condition of their employment. Ex. Z at ¶ 21, Ex.

Z-3.

151a

31.

Durenleau received a copy of the

FDCPA/HIPAA Policy. Ex. A at 91:7-10; Ex. Z-3 at

“NRA0058-59.”

32.

On September 15, 2014, Durenleau signed a

copy of the FDCPA/HIPAA Policy. Ex. A at 91:7-10; Ex. Z-3

at “NRA0058-59.”

33.

The FDCPA/HIPAA Policy that Durenleau

signed includes an Employee Code of Operations which

states that the undersigned employee agrees as follows: “6.

not to disclose my login and password to anyone or divulge

my login and password to allow someone OTHER than myself to access the system; 7. not access or request any information I have no responsibility for.” Ex. Z-3 at

“NRA0058.”

34.

Durenleau understood that she had a legal

obligation to comply with the FDCPA/HIPAA policy and

any other written policy of NRA. Ex. A at 88:8-13.

35.

Durenleau understood that failure to comply with any written policy of NRA or the handbook would

be grounds for termination. Ex. A at 88:16-19.

36.

On September 14, 2020, Badaczewski

signed a copy of the FDCPA/HIPAA Policy. Ex. Z-3 at

“NRA0464-465.”

37.

The FDCPA/HIPAA Policy that Badaczewski

signed includes an Employee Code of Operations which

states that the undersigned employee agrees as follows: “6.

not to disclose my login and password to anyone or divulge

my login and password to allow someone OTHER than myself to access the system; 7. not access or request any information I have no responsibility for.” Ex. Z-3 at

“NRA0464.”

E. Limitations on Access Outlined in NRA Workplace Policies (Z-4)

38.

NRA requires its employees to sign off on its

Workplace Policies upon hire. Ex. Z at ¶ 24; Ex. Z-4.

152a

39.

On September 15, 2014, Durenleau signed a

copy of the Workplace Policies. Ex. Z-4 at “NRA00450046.”

40.

The Workplace Policies that Durenleau

signed state, among other things, that “[n]o employee is

permitted to use company computer systems for personal

use. If any employee is caught using a company system for

anything other than logging on to CRSoftware for collections purposes, they will be terminated immediately.” Ex.

Z at ¶ 25; Ex. Z-4 at “NRA0046.”

41.

On September 14, 2020, Badaczewski

signed a copy of the Workplace Policies. Ex. Z-4 at JB 10;

Ex. E at 125:12-14.

42.

The Workplace Policies that Badaczewski

signed state, among other things, that “[n]o employee is

permitted to use company computer systems for personal

use. If any employee is caught using a company system for

anything other than logging on to CRSoftware for collections purposes, they will be terminated immediately.” Ex.

Z ¶ 25; Ex. Z-4 at “NRA0459.”

F. Durenleau Did Not Have Authorization to Access NRA’s Computer Systems While on COVID

Leave in January 2021

43.

Durenleau was never issued a laptop by

NRA. Ex. B at 390:14-18, 525:19, 531:25; Ex. Y at 6:18-19,

11:6.

44.

NRA issued a work cell phone to Durenleau

through its account with Verizon. Ex. Z at ¶ 135.

45.

Durenleau’s NRA-issued cell phone allowed

her to access her NRA e-mail account. Ex. Z at ¶ 136.

46.

Other than e-mail, Durenleau’s NRA-issued

cell phone did not allow her to access any other parts of

NRA’s computer systems. Ex. B at 401:2-3; Ex. Z at ¶ 136.

47.

Durenleau could not access her NRA desktop on her cell phone. Ex. Z at ¶ 137.

153a

48.

Durenleau could not access her NRA computer desktop, or any files saved on NRA’s systems or networks from her NRA-issued phone. Ex. Z at ¶ 137.

49.

Durenleau’s NRA-issued phone did not include VPN access to NRA’s computer systems. Ex. Z at ¶

137.

50.

Durenleau was out on COVID leave between

January 4, 2021, and January 13, 2021. ECF No. 142 at 9;

Ex. B at 403:16-17.

51.

In order to access files on her NRA computer, Durenleau needed a laptop. Ex. B at 531:1-532:2.

52.

While out on COVID leave, Durenleau asked

her supervisor, Lisa Daube (“Daube”), if she could get a laptop, and Daube told her no. Ex. B at 390:14-18.

53.

While out on COVID leave, Durenleau asked

Daube, if she could come into the office, and Daube told her

no. Ex. B at 390:14-18.

54.

On or about April 23, 2021, Durenleau submitted a Verified Charge of Discrimination with the EEOC.

Ex. R.

55.

In the Verification attached to that Charge,

Durenleau stated, under penalty of perjury, that the facts

set forth in her Charge were true and correct to the best of

her knowledge, information, and belief.

Ex. R at

“D000028.”

56.

In her Verified Charge, Durenleau stated

that in order to perform work from home while on leave,

she “would have needed either a work computer and/or

the log in credentials necessary to access NMLS.” Ex. R at

“D000014,” ¶ 85.

57.

In her verified Charge, Durenleau stated that

“[b]ecause she was home on leave for COVID-19, she did

not [have] access to either.” Ex. R at “D000014,” ¶ 86.

58.

Durenleau further stated that “NRA had not

provided Ms. Durenleau with a laptop (something which

had been provided to all other managers), so she did not

154a

have access to all of the information” that she claims she

needed to perform work during her COVID leave. Ex. R at

“D000014,” ¶ 92.

G. Defendants’ Unauthorized Access to Plaintiff’s

Computer Systems on January 6, 2021

59.

On the morning of January 6, 2021, Lisa

Daube was following up on compliance paperwork for

NRA Group while Durenleau was out of the office on COVID

leave. Ex. AA at ¶ 3.

60.

At this time, Durenleau was NRA’s Senior

Manager of Compliance Services, and Daube was her direct

supervisor. Ex. AA at ¶ 3.

61.

During her leave of absence, Durenleau

asked Daube to go through some work-related papers that

were on her desk at NRA’s office at 3307 E. Trindle Road in

Camp Hill, PA. Ex. J at 142:16-19; Ex. AA at ¶ 4.

62.

On the morning of January 6, 2020, Daube

discovered a letter on Durenleau’s desk from the State of

Wyoming Collection Agency Board, dated December 17,

2020 (the “Wyoming Letter”). Ex. J at 143:2-11; Ex. AA at ¶

5; Ex. AA-1 (Wyoming Letter).

63.

The Wyoming Letter was addressed to EBO

Solutions, LLC (“EBO”), a subsidiary of NRA that does business as National Recovery Agency. Ex. AA at ¶ 6; Ex. AA-1.

64.

The Wyoming Letter was directed to Durenleau’s attention at NRA and EBO’s main office at 2491 Paxton Street in Harrisburg, PA, where Durenleau also worked

when she was employed by NRA. Ex. AA at ¶ 6; Ex. AA-1.

65.

The Wyoming Letter stated that EBO’s renewal license application had been denied due to untimeliness. Ex. AA-1 at “NRA002116.”

66.

The Wyoming Letter stated that if EBO

wished to resolve the issue regarding the denial of its

155a

license without a full hearing, it must pay a $250 fine, via

NMLS, within 20 days. Ex. AA-1 at “NRA002117.”

67.

20 calendar days from December 17, 2020,

is January 6, 2021.

See https://www.timeanddate.com/date/dateadd.html.

68.

The Wyoming Letter also required EBO to

submit a signed copy of the letter along with payment of

the fine. Ex. AA-1 at “NRA002117.”

69.

When Daube discovered the Wyoming Letter on Durenleau’s desk, it was not signed. Ex. AA at ¶ 12.

70.

In December of 2020, Durenleau represented to NRA Group that the Wyoming license had successfully been renewed. Ex. J at 141:14-142:4.

71.

The Wyoming Letter also indicated that it

was sent via e-mail through the National Multistate Licensing System & Registry (“NMLS”).

Ex. AA-1 at

“NRA002116.”

72.

As NRA’s Senior Manager of Compliance

Services, Durenleau was responsible for monitoring NMLS

and following up on state collections licensing approvals

and renewals in all 50 states. Ex. AA at ¶ 9; Ex. J at 141:1113; Ex. K at 13:13-23.

73.

As part of her employment with NRA,

Durenleau had access to NMLS and could view messages

and documents posted there. Ex. AA ¶ 10.

74.

Durenleau testified that “[she] controlled

portions of NMLS for [NRA].” Ex. B at 399:12-15; 533:6-25;

534:1-2; 535:16-17

75.

When Daube discovered the unsigned Wyoming Letter on Durenleau’s desk on the morning of January

6, 2021, she called Durenleau to ask for her username and

password for NMLS so that she (Daube) could follow-up on

this issue. Ex. AA at ¶ 13; Ex. J at 143:12-23.

76.

At 9:08 a.m. and 9:17 a.m. on January 6,

2021, Durenleau and Daube spoke by phone. Ex. T at

156a

“D000152”; Ex. W at “GARTLAND-PROD0000009,

0000010.”

77.

During their initial January 6, 2021, phone

call, Durenleau told Daube that NRA Group’s corporate

counsel, Brian Mains, had access to NMLS. Ex. J at 143:18144:4; 146:22-147:5.

78.

During the initial January 6, 2021, phone

call, Daube asked Durenleau for Durenleau’s login information. Ex. J at 144:9-11.

79.

During the initial January 6, 2021, phone

call, Durenleau stated that she did not recall her password.

Ex. J at 144:9-14.

80.

On January 6, 2021, throughout the day, Durenleau exchanged text messages with (717) 599-4068. Ex.

T at “D000150-D000151”; Ex. W at “GARTLANDPROD0000011-14.”

81.

(717) 599-4068 is Jamie Badaczewski’s personal cell phone number. Ex. W at 1; Ex. E at 148:13-14.

82.

At 10:36 a.m. on January 6, 2021, Durenleau

sent two text messages to Badaczewski. Ex. T at “D000

83.

At 10:50 a.m. on January 6, 2021, Daube

texted Durenleau that “Brian [Mains] does not have access

to the NMLS. Who else has access? The bill needs paid

through the site.” Ex. AA-2 at “NRA001915.”

84.

At 10:52 a.m. on January 6, 2021, Durenleau

texted Daube “When is it due? I can do it when I come

back.” Ex. AA-2 at “NRA001915.”

85.

At 10:56 a.m. on January 6, 2021, Durenleau

received a text message from Badaczewski. Ex. T at

“D000151.”

86.

At 10:58 a.m. on January 6, 2021, Durenleau

sent two text messages to Badaczewski. Ex. T at

“D000151.”

87.

At 10:58 a.m. on January 6, 2021, Daube

texted Durenleau “20 days from the date of the letter which

157a

is 12/17. If you count all the days it is due today. Or only

count business days?” Ex. AA-2 at “NRA001915.”

88.

At 10:59 a.m. on January 6, 2021, Durenleau

texted Daube “I am not sure. But only Steve and I have access.” Ex. AA-2 at “NRA001915.”

89.

At 11:01 a.m. on January 6, 2021, Durenleau

received two text messages from Badaczewski. Ex. T at

“D000151.”

90.

At 11:04 a.m. on January 6, 2021, Durenleau

sent a text message to Badaczewski. Ex. T at “D000151.”

91.

At 11:13 a.m. on January 6, 2021, Durenleau

texted Daube “I’ll get back to u [sic] on this!” Ex. AA-2 at

“NRA001916.”

92.

At 11:20 a.m. on January 6, 2021, Durenleau

received a text message from Badaczewski. Ex. T at

“D000151.”

93.

At 11:59 a.m. on January 6, 2021, Daube

texted Durenleau “Can you resend Steve’s access to

NMLS”? Ex. AA-2 at “NRA001916.”

94.

At 12:04 p.m. on January 6, 2021, Daube

texted Durenleau “I can have Doug sift your emails or you

can share your log on so we can pay this today.” Ex. AA-2

at “NRA001916”; Ex. J at 63:5-13.

95.

At 12:04 p.m. on January 6, 2021, Durenleau

called Badaczewski. Ex. T at “D000150”; Ex. W at “GARTLAND-PROD0000009, 00000013.”

96.

That phone call lasted 9 minutes. Ex. T at

“D000150.”

97.

During that phone call, Durenleau provided

Badaczewski with her NRA computer password. Ex. E at

193:1-9, 201:6-8; Ex. Y at 6:23-7:8.

98.

Badaczewski did not work with Durenleau.

Ex. E at 141:24-25.

99.

Badaczewski did not work for Durenleau.

Ex. E at 141:24-25.

158a

100. Badaczewski did not work in the same building as Durenleau. Ex. E at 142:14-21.

101. Durenleau worked primarily out of NRA’s

Camp Hill office in Cumberland County (3307 E Trindle

Road Suite 30, Camp Hill, PA). Ex. A at 156:12-13; Ex. E at

142:14-21.

102. Badaczewski worked out of NRA’s main office in Dauphin County (2491 Paxton Street, Harrisburg,

PA). Ex. E at 142:14-21.

103. Defendant Durenleau provided her NRA

computer password to Badaczewski so that she could sign

into NRA’s computer network as Durenleau. Ex. E at

187:13-23; Ex. Y at 7:6-7.

104. Badaczewski accessed Durenleau’s computer using Durenleau’s password. Ex. E at 200:18-23.

105. Once logged in as Durenleau, Badaczewski

accessed a Microsoft Excel spreadsheet of passwords (the

“Password Spreadsheet”) that Durenleau had previously

created. Ex. E at 200:18-23, 201:6-8; Ex. B at 399:12-25.

106. After accessing the Password Spreadsheet

on January 6, 2021, Badaczewski gave Durenleau the

NMLS login that Daube had requested. Ex. R at “D000014,”

¶¶ 93-94; Ex. J at 60:14-61:2.

107. At 12:07 p.m. on January 6, 2021, Durenleau

texted Daube her NMLS username and password. Ex. AA-2

at “NRA001916.”

108. At 12:08 p.m. on January 6, 2021, Durenleau

sent a text to Badaczewski. Ex. T at “D000150.”

109. At 12:09 p.m. on January 6, 2021, Daube

texted Durenleau “Ok we are in.”

Ex. AA-2 at

“NRA001916.”

110. At 12:09 p.m. on January 6, 2021, Durenleau

texted Daube “Ok great!” Ex. AA-2 at “NRA001916.”

111. At 12:18 p.m. on January 6, 2021, Badaczewski called Durenleau. Ex. T at “D000150.”

159a

112. At 1:21 p.m. on January 6, 2021, Daube

texted Durenleau “[w]here is the form?” Ex. AA-2 at

“NRA001917.”

113. At 1:21 p.m. on January 6, 2021, Durenleau

texted Daube “Steve has them.” Ex. AA-2 at “NRA001917.”

114. After the text exchange on January 6, 2021,

Daube and Durenleau did not exchange any further text

messages about the Wyoming issue or NMLS login. Ex. AA2.

H. Defendants did not have Permission to Access

NRA’s Computer Systems Under Ms. Durenleau's Username on January 6, 2021

115. Between 12:20 p.m. and 1:56 p.m. on

January 6, 2021, Kusic emailed Durenleau and Daube. Ex.

S at “D000083-87.”

116. In his January 6, 2021, emails, Kusic did not

instruct Durenleau to log into any NRA computer. Ex. S at

“D000083-87.”

117. In his January 6, 2021, emails, Kusic did not

instruct Durenleau to share her NRA computer password

with anyone. Ex. S at “D000083-87.”

118. Durenleau was not instructed by Kusic to

“log into” any of NRA’s systems or applications while on

leave. Ex. S at “D000083-87”; Ex. AA-2.

119. Durenleau was not instructed by Daube to

“log into” any of NRA’s systems or applications while on

leave. Ex. S at “D000083-87”; Ex. AA-2.

120. At no point during her text exchange with

Daube did Durenleau ask permission to log into any of

NRA’s systems or applications while on leave. Ex. AA-2.

121. At no point during her e-mail exchange with

Daube and Kusic did Durenleau ask permission to log into

any of NRA’s systems or applications while on leave. Ex. S

at “D000083-87.”

160a

122. At 2:14 p.m. on January 6, 2021, Durenleau

e-mailed Kusic from her iPhone, stating “Per NMLS we

have been all paid up and docs were provided we are just

waiting in line for approval. They [sic] form just needed

signed and emailed.” Ex. S at “D000087.”

123. Durenleau’s 2:14 p.m. e-mail to Kusic was

the last e-mail that Defendants produced regarding the

Wyoming licensure issue during Durenleau’s January 2021

leave of absence. Ex. S.

124. Durenleau testified that no one instructed or

permitted her to give Badaczewski her computer

password. Ex. A at 91:7-19; 97:8-12.

125. Durenleau testified that she knew that she

and Badaczewski were prohibited from sharing their

computer passwords with anyone. Ex. A at 91:7-19; 97:812.

126. Badaczewski testified that no one instructed

or permitted Durenleau to give her Durenleau’s computer

password. Ex. E at 113:1-22, 192:11-14.

127. Badaczewski testified that she knew that Badaczewski and Durenleau were prohibited from sharing

their computer passwords with anyone. Ex. E at 113:1-22,

192:11-14.

128. Durenleau testified that she could have

given Daube her NRA computer password, “but that would

have been dumb.” Ex. B at 532:3-19.

129. Durenleau testified that Daube “did not like

[Durenleau].” Ex. B at 532:8-15.

130. When interviewed by Swatara Township Police Detective Ryan Gartland on March 25, 2021,

Badaczewski admitted that Durenleau told her that “she

didn’t want IT – or she didn’t trust IT or, like, anyone else

getting her passwords” and “[t]hat’s the reason why she

wanted me to [e-mail the Password Spreadsheet].” Ex. Y at

11:14-19.

131. [omitted]

161a

132. Durenleau admits that she did not ask permission from anyone at NRA to write down passwords in

this manner. Ex. B at 535:4-13.

I. Defendants’ Unauthorized Access to Plaintiff’s

Computer Systems on January 7, 2021

133. On January 7, 2021, at 12:48 p.m., Durenleau

called Badaczewski. Ex. Z-8 at “NRA001849”; Ex. E at

201:3-16.

134. That phone call lasted 16 minutes. Ex. Z-8 at

“NRA001849.”

135. Durenleau gave Badaczewski her password

during their phone call so that Badaczewski could access

her computer. Ex. E at 201:20-202:2.

136. Absent Durenleau giving Badaczewski her

password, Badaczewski could not have logged into Durenleau’s computer. Ex. E at 201:17-19.

137. When Durenleau gave Badaczewski her

password, Badaczewski typed it into the computer while

she was on the phone with Durenleau. Ex. E at 202:6-13.

138. Badaczewski testified that Durenleau told

Badaczewski to go to a folder and send her a Microsoft Excel file. Ex. E at 202:18-203:2.

139. At 12:58 p.m. EST1 on January 7, 2021, Badaczewski sent an e-mail from Durenleau’s NRA e-mail account to ndurenleau@gmail.com, with the subject line “:)”

and with the Password Spreadsheet (a Microsoft Excel file

titled “My_Passwords.xlsx.”) attached. Ex. “Z-6”; Ex. Y at

7:16-19; Ex. EE at 8 (“NRA 002713”).

140. When interviewed by Detective Gartland on

March 25, 2021, Badaczewski agreed that the only way she

could get the Password Spreadsheet was if she signed in

The times in the January 7, 2021, e-mail (Ex. Z-6) and the INA report

(Ex. EE) and are listed as 17:58 (5:58 p.m.) UTC, but have been

adjusted here to reflect EST (UTC-5 hours) which was in effect in

January of 2021.

1

162a

under Durenleau’s name, because Durenleau’s desktop

had things that Badaczewski’s desktop didn’t. Ex. Y at

10:5-9.

141. At 1:26 p.m. on January 7, 2021, Durenleau

sent a text message to Badaczewski. Ex. T at “D000149.”

142. At 1:27 p.m. on January 7, 2021, Durenleau

called Badaczewski. Ex. T at “D000149.”

143. Badaczewski admitted that Durenleau asked

her to “help her with her job when she was on COVID

leave.” Ex. E at 169:14-19.

144. Durenleau had not been assigned any work

tasks on January 7, 2021. Ex. S at “D000083-D000087.”

145. Badaczewski admitted that she logged in under Durenleau’s username. Ex. E at 187:13-23; 200:18-25.

146. Badaczewski admitted that she accessed

Durenleau’s computer. Ex. E at 200:18-25.

147. Badaczewski admitted that Durenleau instructed her on where to go in the computer to find the information Durenleau requested. Ex. E at 193:1-9.

148. Badaczewski admitted that she sent

Durenleau “a file” while logged-in as Durenleau. Ex. E at

190:2-5.

149. The “file” Badaczewski transmitted was the

Password Spreadsheet. Ex. EE at “NRA002714.”

150. The Password Spreadsheet was created by

Durenleau on June 12, 2016 at 9:24 a.m. Ex. EE at

“NRA002713;” Ex. B at 399:12-15.

151. The Password Spreadsheet was modified by

Durenleau on September 24, 2020 at 9:33 a.m. Ex. EE at

“NRA002713.”

152. The Password Spreadsheet was also modified by Durenleau on November 20, 2020 at 11:24 a.m. Ex.

EE at “NRA002713.”

153. The Password Spreadsheet was also modified by Durenleau on December 31, 2020 at 10:56 a.m.. Ex.

EE at “NRA002713.”

163a

154. The Spreadsheet was “Last Printed” from

Durenleau’s computer on April 1, 2019. Ex. EE at

“NRA002713.”

155. Badaczewski transmitted the Spreadsheet

to Durenleau two (2) separate times on the afternoon of

January 7, 2021, both without any form of encryption or

password protection: first at 12:58 p.m. (to Durenleau’s

personal Gmail account), and then at 1:16 p.m. (to Durenleau’s NRA email address). Ex. EE at 9 (“NRA002714”).

156. The desktop computer that had been assigned to Badaczewski during her employment with NRA

was issued the same IP address that sent the January 7,

2021 Password Spreadsheet e-mail. Ex. EE at 40

(“NRA002745”).

157. Badaczewski admitted that she emailed a

document she obtained from Durenleau’s computer using

Durenleau’s password to her Gmail account. Ex. E at

200:24-201:2.

158. Badaczewski admitted that Kusic did not directly instruct her to take Durenleau’s password and log

onto the computer. Ex. E at 192:11-14.

159. Badaczewski admitted that, as an employee

of NRA, she was obligated to comply with NRA’s email policy set forth in its Employee Handbook. Ex. E at 113:1-22.

160. During her employment with NRA, Badaczewski was a marketing employee. Ex. Z at ¶ 140.

161. Badaczewski had limited access to NRA’s

computer system through her own username and password that she could use when in NRA’s office. Ex. Z at ¶

141.

162. Badaczewski was not issued an NRA laptop

or other mobile electronic device allowing access to NRA’s

computer systems. Ex. Z at ¶ 142.

163. Badaczewski did not have any compliance

responsibilities and was not provided with Credentials for

164a

any of the third-party web portals listed on the Spreadsheet. Ex. Z at ¶ 143.

164. Because Badaczewski was not provided

with Credentials for any of the third-party web portals

listed on the Spreadsheet, she would not have been able to

access or look up those Credentials using her own NRA

login. Ex. Z at ¶ 144.

165. In its Amended Notice of Deposition to Durenleau, issued on March 7, 2022, Plaintiff requested that

Durenleau provide, among other things, “[c]opies of all

communications, including text messages, emails and written correspondence, exchanged between Nicole Durenleau

and Jamie Badaczewski between October 1, 2020 through

March 24, 2022.” Ex. C at “ND 1” at 5, ¶ 14.

166. In its Amended Notice of Deposition to Badaczewski, issued on March 7, 2022, Plaintiff requested

that Badaczewski provide, among other things, “[c]opies of

all communications, including text messages, emails and

written correspondence, exchanged between Nicole Durenleau and Jamie Badaczewski between October 1, 2020

through March 24, 2022.” Ex. G at “JB 1” at 5, ¶ 17.

167. In its Notice of Deposition for the second day

of Badaczewski’s deposition, issued on March 28, 2022,

Plaintiff requested that Badaczewski provide, among other

things, “[c]opies of all communications, including text messages, emails and written correspondence, exchanged between Nicole Durenleau and Jamie Badaczewski between

October 1, 2020 through March 24, 2022.” Ex. G at “JB 1A”

at 5, ¶ 17.

168. Defendants did not produce copies of the

text messages exchanged between Durenleau and Badaczewski on January 6 and 7, 2021. Ex. A at 16:11-34:5;

Ex. B at 316:17-325:5; Ex. E at 145:14-147:15; Ex. F at

333:2-333:20.

165a

J. Plaintiff’s Damages and Loss in Excess of the

CFAA Statutory Threshold

169. Plaintiff’s Expert Report on Damages, authored by David M. Duffus of HKA Global Inc. (“HKA”), concluded that “to a reasonable degree of professional certainty that NRA has sustained actual damages as of the date

of this Expert Report totaling $343,445,” and that “NRA is

expected to incur an additional $432,216 in future damages associated with additional third-party costs, and has

the potential to incur as much as $138,587,176 in additional future damages related to costs associated with

NRA’s contractual and statutory need to respond to the Defendants’ actions.” Ex. FF at 25 (“NRA002773”).

170. Defendants’ damages expert, Huber Klein,

concluded in his report that NRA has an aggregate loss of

$5,000 or more during any one-year period and “to a reasonable degree of accounting and financial certainty,

NRA’s damages total $24,093.” Ex. GG at 2 (“D001015”).

II.

FACTS PERTINENT TO DEFENDANTS’ MISAPPROPRIATION OF TRADE SECRETS (COUNTS

V-VI)

[continued in Petitioner’s Appendix Vol. III]