Petition for Writ of Certiorari — NRA Group, LLC, Petitioner v. Nicole Durenleau, et al.
Supreme Court briefFeb 6, 2026
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Text
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 III
_________________________________________________________________
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 III
Part Two 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 171-930)…...…… 166a
166a
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
I.
FACTS PERTINENT TO DEFENDANTS’ VIOLATIONS OF THE COMPUTER FRAUD AND
ABUSE ACT (COUNTS I-IV)
167a
[Paragraphs 1-170 are Contained in
Petitioner’s Appendix Vol. III]
II.
FACTS PERTINENT TO DEFENDANTS’ MISAPPROPRIATION OF TRADE SECRETS (COUNTS
V-VI)
A. Protections of Confidential Information and
Trade Secrets Contained in NRA Group’s Employment Agreements (“ND 8” and “JB 8”) and
Employee Handbooks (CC-1 and CC-2).
171. Durenleau signed the NRA Employment
Agreement on September 15, 2014. Ex. C at “ND 8.”
172. The version of NRA’s Employment Agreement in effect at the time of Durenleau’s hire states: “I have
received and read a copy of [NRA’s] Employee Handbook
and will fully abide by all company policies and procedures. Ex. C at “ND 8,” ¶ 1.
173. The version of NRA’s Employment Agreement in effect at the time of Durenleau’s hire has a Confidentiality provision that states: “I understand that I will be
coming into contact with confidential information. This information is to be released only within the company on a
‘need to know’ basis only. Breaches of confidentiality may
result in disciplinary action and/or termination.” Ex. C at
“ND 8,” ¶ 14.
174. Durenleau admitted that she received a copy
of NRA’s Employee Handbook when she began working for
NRA. Ex. A at 75:12-15.
175. Durenleau admitted that she reviewed
NRA’s Employee Handbook. Ex. A at 75:16-19.
176. On September 15, 2014, the date she started
working at NRA, Durenleau signed an acknowledgement
stating that she received a copy of NRA’s Employee Handbook. Ex. A at 75:20-76:10; Ex. C at “ND 4.”
168a
177. The version of NRA’s Employee Handbook in
effect at the time of Durenleau’s hire had a Confidentiality
Policy. Ex. CC-1 at “NRA000944.”
178. The Confidentiality Policy states that “[p]er
the Security and Information Policy, there is to be NO writing down of any financial information.” Ex. CC-1 at
“NRA000944.”
179. The Confidentiality Policy states that
“[f]inancial information includes but is not limited to account numbers, social security numbers, and/or credit
card numbers.” Ex. CC-1 at “NRA000944.”
180. The Confidentiality Policy states that “[t]his
information must be entered directly into the computer
system and should not be written down at any time during
a communication. There are no exceptions.” Ex. CC-1 at
“NRA000944.”
181. The Confidentiality Policy states that
“[b]reaches of confidentiality may result in disciplinary action up to and including termination of employment.” Ex.
CC-1 at “NRA000944.”
182. The version of NRA’s Employee Handbook in
effect at the time of Durenleau’s hire has a Company Property policy. Ex. CC-1 at “NRA000944.”
183. The Company Property policy states that
“[e]mployees are prohibited from unauthorized possession or use of property, proprietary information or supplies which belong to the Company including voicemail
and email.” Ex. CC-1 at “NRA000944.”
184. The version of NRA’s Employee Handbook in
effect at the time of Durenleau’s hire has an Electronic Mail
(E-Mail) Usage policy. Ex. CC-1 at “NRA000948-949.”
185. The E-Mail Usage policy states that “Company confidential messages should be distributed to personnel only. Forwarding to outside locations is prohibited.” Ex. CC-1 at “NRA000948-949.”
169a
186. The E-Mail Usage policy states that “[g]reat
care must be taken when attaching documents or files to
an email. If the email contains any sensitive and personal
information regarding a consumer, the email must be encrypted.” Ex. CC-1 at “NRA000948-949.”
187. The version of NRA’s Employee Handbook in
effect at the time of Durenleau’s hire has an Internet Usage
policy. Ex. CC-1 at “NRA000955-NRA000956.”
188. The Internet Usage policy states that unacceptable uses include, but is not limited to, “[s]haring confidential material, trade secrets or proprietary information
outside of the organization.” Ex. CC-1 at “NRA000955NRA000956.”
189. Badaczewski signed the NRA Employment
Agreement on September 14, 2020. Ex. G at “JB 8.”
190. The version of NRA’s Employment Agreement in effect at the time of Badaczewski’s hire states: “I
have received and read a copy of [NRA’s] Employee Handbook and will fully abide by all company policies and procedures. Ex. G at “JB 8,” ¶ 1.
191. The version of NRA’s Employment Agreement in effect at the time of Badaczewski’s hire has a Confidentiality provision that states: “I understand that I will
be coming into contact with confidential information. This
information is to be released only within the company on
a ‘need to know’ basis only. Breaches of confidentiality
may result in disciplinary action and/or termination.” Ex.
G at “JB 8,” ¶ 14.
192. Badaczewski received a copy of Plaintiff’s
Employee Handbook. Ex. E at 95:7-11, 102:10-18.
193. On September 14, 2020, Badaczewski
signed an acknowledgement that she received a copy of
NRA’s Employee Handbook. Ex. E at 95:7-11, 102:10-18;
Ex. G at “JB 6.”
170a
194. The version of NRA’s Employee Handbook in
effect at the time of Badaczewski’s hire has a Confidentiality Policy. Ex. CC-2 at “NRA0201.”
195. The Confidentiality Policy states that “[p]er
the Security and Information Policy, there is to be NO writing down of any financial information.” Ex. CC-2 at
“NRA0201.”
196. The Confidentiality Policy states that
“[f]inancial information includes but is not limited to account numbers, social security numbers, and/or credit
card numbers.” Ex. CC-2 at “NRA0201.”
197. The Confidentiality Policy states that “[t]his
information must be entered directly into the computer
system and should not be written down at any time during
a communication. There are no exceptions.” Ex. CC-2 at
“NRA0201.”
198. The Confidentiality Policy states that
“[b]reaches of confidentiality may result in disciplinary action up to and including termination of employment.” Ex.
CC-2 at “NRA0201.”
199. The version of NRA’s Employee Handbook in
effect at the time of Badaczewski’s hire has a Company
Property policy. Ex. CC-2 at “NRA0201.”
200. The Company Property policy states that
“[e]mployees are prohibited from unauthorized possession or use of property, proprietary information or supplies which belong to the Company including voicemail
and email.” Ex. CC-2 at “NRA0201.”
201. The version of NRA’s Employee Handbook in
effect at the time of Badaczewski’s hire has an Electronic
Mail (E-Mail) Usage policy. Ex. CC-2 at “NRA0207NRA0208.”
202. The E-mail Usage policy states that “[i]t is
strictly forbidden to use NRA’s email/fax system for anything other than legitimate business purposes.” Ex. CC-2 at
“NRA0207-NRA0208.”
171a
203. The E-Mail Usage policy states that “Company confidential messages should be distributed to personnel only. Forwarding to outside locations is prohibited.” Ex. CC-2 at “NRA0207-NRA0208.”
204. The E-Mail Usage policy states that “[g]reat
care must be taken when attaching documents or files to
an email. If the email contains any sensitive and personal
information regarding a consumer, the email must be encrypted.” Ex. CC-1 at “NRA000948-949.”
205. The E-mail Usage policy states various unacceptable uses of Company Email by employees. Ex. CC-2 at
“NRA0207-NRA0208.”
206. Unacceptable uses of email include, but is
not limited to, “[s]haring confidential material, trade secrets or proprietary information outside of the organization.” Ex. CC-2 at “NRA0207-NRA0208.”
207. The version of NRA’s Employee Handbook in
effect at the time of Badaczewski’s hire has an Internet Usage policy. Ex. CC-2 at “NRA0215-NRA0216.”
208. The Internet Usage policy states that unacceptable uses include, but is not limited to, “[s]haring confidential material, trade secrets or proprietary information
outside of the organization.” Ex. CC-2 at “NRA0215NRA0216.”
B. Protections of Confidential Information and
Trade Secrets Contained in NRA’s Security
Manual (Z-1)
209. NRA’s Security manual states: “NRA does
not disclose non-public, personal information about consumers to other parties in any manner other than to process each client’s accounts. While NRA maintains insurance coverage against any regulatory violations, the company has a ‘zero tolerance’ policy towards any such violation.” Ex. Z at ¶ 12; Z-1 at “NRA0243.”
172a
C. Protections of Confidential Information and
Trade Secrets Contained in NRA’s Customer
Privacy Policy (Z-2)
210. NRA’s Customer Privacy Policy states that
NRA “requires its employees, contractors and third party
service providers to take appropriate measures to protect
the security and integrity of non-public customer information,” including but not limited to: “not leaving customer information or private documents unattended
where they can be easily viewed, copied, or taken; Locking
rooms and file cabinets where customer data is stored; Utilizing unique computer passwords, changing the passwords often, and not posting passwords at or near computer terminals; Not allowing unauthorized use of computer terminals or access of customer files; Referring any
unusual requests for customer information to the Compliance Department or your supervisor; [and] Promptly reporting to the Compliance Department or your supervisor
anytime you know or suspect that customer information
has been compromised or misappropriated.” Ex. Z-2 at
“NR0054,” “NRA0456.”
D. Protections of Confidential Information and
Trade
Secrets
Contained
in
NRA’s
FDCPA/HIPAA Policy (Z-3)
211. NRA’s Statement of Policy Regarding Contact with Consumers, the FDCPA and HIPAA includes an
Employee Code of Operations, in which employees agree,
among other things, “2. not to disclose the Protected
Health Information (“PHI”) provided by the health care
provider or other covered entity for any purpose other
than to collect the assigned account; 3. not to disclose the
PHI provided by the health care provider or other covered
entity to anyone, including co-workers, other than the consumer without the express written consent of the consumer.” Ex. Z at ¶ 22; Ex. Z-3 at “NRA0058,” “NRA04764.”
173a
E. Defendants Were Aware of Their Obligations
to Keep Confidential Information Private and
Secure
212. Durenleau understood the nature of
Plaintiff’s business. Ex. A at 97:8-12.
213. Badaczewski understood the nature of
Plaintiff’s business. Ex. E at 104:5-9.
214. Durenleau understood that the information
that Plaintiff possessed for its business was private and
confidential and had to be protected. Ex. A at 97:8-12; Ex.
B at 393:4-7.
215. Durenleau understood that she had a responsibility to maintain Plaintiff’s image and use electronic resources in a protective manner to avoid placing
the company at risk of legal liability. Ex. A at 110:1-23.
216. Badaczewski
understood
that
the
information that Plaintiff possessed for its business was
private and confidential and had to be protected. Ex. E at
108:9-109:19, 112:5-12.
217. Badaczewski understood that she, as an employee, had an obligation to protect this information. Ex. E
at 108:24-109-22.
F. The Password Spreadsheet that Defendants
E-mailed to Durenleau’s Personal Gmail Account on January 7, 2021, Contained Trade
Secrets
218. At approximately noon on February 24,
2021, Daube discovered that an e-mail had been sent from
Durenleau’s
NRA
address
(ndurenleau@nragroup.com) to her personal Gmail address
(ndurenleau@gmail.com) on January 7, 2021. Ex. AA at ¶
40.
219. Attached to the e-mail Daube discovered
(which had a smiley face emoji in the subject line) was the
Password Spreadsheet, containing usernames, passwords
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and other credentials that would allow anyone with an internet connection to access various private web portals
used by NRA during its collections business. Ex. AA at ¶ 41.
220. These web portals include Personal Identifying Information (“PII”) such as names, dates of birth, social security numbers, utility bills, medical bills, financial
account information, and other information which Durenleau was not authorized to access outside of her work at
NRA. Ex. AA at ¶ 42.
221. From September of 2018 through her resignation from NRA on February 21, 2021, Durenleau worked
in NRA’s compliance department and had access to a large
volume of consumer PII through the Credentials that she
used to perform her job duties on behalf of NRA. Ex. Z at ¶
28.
222. After Durenleau’s resignation, Kusic became
aware that the Password Spreadsheet had been e-mailed
from Durenleau’s NRA e-mail account to her personal
Gmail account on January 7, 2021. Ex. Z at ¶ 29; Ex. Z-6.
223. Kusic was not aware that the Password
Spreadsheet had been e-mailed to an external e-mail address on January 7, 2021, and did not authorize the Password Spreadsheet to be mailed to an external e-mail address at any time. Ex. Z at ¶ 30.
224. Kusic was not aware that the Password
Spreadsheet existed until after Durenleau resigned from
NRA. Ex. Z at ¶ 30.
225. The Password Spreadsheet contains Credentials for a variety of web portals which would allow anyone with an internet connection to access an extensive
amount of confidential and non-public information, including PII. Ex. Z at ¶ 32.
226. Kusic was not aware that Durenleau created
the Password Spreadsheet, nor did he authorize her to create it. Ex. Z at ¶ 33.
175a
227. The Credentials listed on the Spreadsheet
are related to the debt collection services that NRA provides for its customers. Ex. Z at ¶ 34.
228. The Credentials allow anyone with an internet connection to access consumer PII. Ex. Z at ¶ 34.
229. The Credentials listed on the Spreadsheet
belong to NRA and/or its owners and affiliates and were
used by Durenleau solely in her capacity as an employee in
NRA’s compliance department. Ex. Z at ¶ 36.
230. The Spreadsheet contains two sets of Credentials for the EOSCAR web portal (one for user access
“EOSCAR”, and the other for administrative access
“EOSCAR Admin”). Ex. Z at ¶ 41.
231. EOSCAR, which is owned by Online Data Exchange LLC, allows authorized users to access information
regarding all consumer disputes with Credit Reporting
Agencies (“CRAs”) (including but not limited to Experian,
Equifax and TransUnion). Ex. Z at ¶ 42.
232. NRA’s EOSCAR credentials allow anyone
with an internet connection to view and download Personal Identifiable Information (“PII”) for every consumer
currently disputing a debt placed with NRA, including their
names, social security numbers, dates of birth, addresses,
phone numbers, and details regarding the amount and nature of the debt in question. EOSCAR also allows data
about CRA disputes to be archived, depending on the resolution of the issue. Ex. Z at ¶ 43.
233. Because consumers who wish to properly
challenge a debt must dispute it with both the creditor and
the CRA reporting the debt, the EOSCAR portal includes information regarding a large number of consumers. Ex. Z at
¶ 44.
234. The PII available on EOSCAR is sufficient to
aid or allow identity theft, and therefore NRA’s EOSCAR
Credentials have value to cyber criminals. Ex. Z at ¶ 45.
176a
235. EOSCAR is accessible via the following
webpage: https://www.e-oscar-web.net/. Upon accessing
the EOSCAR webpage, users and prospective users are
shown the following advisory:
By logging into the e-OSCAR System, you
agree that you are authorized to use the eOSCAR System, and that you are doing so on
behalf of an authorized Registrant of the eOSCAR System for an authorized purpose.
Your use of the e-OSCAR System is subject to,
and must comply with, the e-OSCAR-web
System Terms of Use. By logging into the eOSCAR System you are agreeing that you
have reviewed the e-OSCAR-web System
Terms of Use and you will follow the Terms
of Use. Unauthorized access to or use of the eOSCAR System is prohibited by Federal Law.
If you are not an authorized user of the eOSCAR System, or if you exceed the
authorizations granted by the e-OSCAR-web
System Terms of Use, you may be subject to
both criminal prosecution and civil lawsuits.
Warning! Unauthorized access to or use of
the e-OSCAR System is prohibited by
Federal Law.”
Ex. Z at ¶ 46.
236. EOSCAR is not accessible to the public, nor
can members of the public obtain access to EOSCAR
through a payment or subscription. EOSCAR is only available to CRAs and firms (such as NRA) who are involved in
the resolution of disputes about the accuracy of consumer
information. Ex. Z at ¶ 47.
237. NRA gained access to EOSCAR because it has
an authorized purpose for accessing the information contained on EOSCAR as part of its business as a multi-state
licensed collections agency. Ex. Z at ¶ 48.
177a
238. In order to gain Credentials to access
EOSCAR, NRA had to sign a contract with Online Data Exchange LLC and pay a fee for access. Ex. Z at ¶ 48.
239. During her employment in NRA’s compliance department, Durenleau was given administratorlevel access to EOSCAR which allowed her to access
EOSCAR to view the CRA dispute information described
above. Ex. Z at ¶ 49.
240. Had Durenleau not been employed by NRA
in a compliance role or other authorized support role, she
would not have been authorized to use or access EOSCAR.
Ex. Z at ¶ 49.
241. The Spreadsheet contains NRA’s Creden2
tials for ten (10) web portals operated by a third-party accounts receivable platform (referred to here using the
pseudonym “Utility Platform”) that partners with utility
companies to assist them and their collections firms (such
as NRA) to recover unpaid bills. Ex. Z at ¶ 50.
242. The portals on the Spreadsheet are associated with ten (10) different energy and utility companies
that use Utility Platform. Ex. Z at ¶ 50.
243. Utility companies that partner with Utility
Platform provide Utility Platform with a large volume of
PII regarding their customers. Ex. Z at ¶ 51.
244. Utility Platform’s web portals, set up for
each utility, allow debt collection firms like NRA to access
information about customers whose accounts were placed
with them for collection. Ex. Z at ¶ 51.
245. NRA’s Utility Platform Credentials allow anyone with an internet connection to access the Utility Platform portals for the above utility companies and view and
While passwords are not included for five (5) of the Utility Platform
portals listed on the Spreadsheet, the Spreadsheet indicates that
Durenleau used similar passwords for all the Utility Platform portals,
allowing any recipient of the Spreadsheet to infer the passwords for
the other five portals.
2
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download files containing PII for each consumer whose
debt has been placed for collection. This PII includes, but
is not limited to names, social security numbers, dates of
birth, address, phone, e-mail, and information about the
debt referred for collection. Ex. Z at ¶ 52.
246. The energy companies listed in the Spreadsheet serve customers up and down the east coast, all of
which had placed debts with NRA for collection. Ex. Z at ¶
53.
247. At any one time, Credentials for the Utility
Platform portals listed above would have allowed anyone
with an internet connection to access PII for over 500,000
consumers. Ex. Z at ¶ 53.
248. The PII available on Utility Platform portals
is sufficient to aid or allow identity theft, and therefore
Credentials to access Utility Platform portals have value to
cyber criminals. Ex. Z at ¶ 54.
249. Utility Platform is not accessible to the public, nor can members of the public obtain access to Utility
Platform through a payment or subscription. Ex. Z at ¶ 55.
250. NRA obtained Credentials to access Utility
Platform only after signing collections contracts with the
utility companies listed above, obtaining sufficient insurance coverage (including cyber insurance), and submitting
to and passing a SOC 2 audit to ensure that NRA adequately
protects consumer data. Ex. Z at ¶ 56.
251. During her employment in NRA’s compliance department, Durenleau was given access to Utility
Platform’s portals to perform her job duties for NRA. Ex. Z
at ¶ 57.
252.
Had Durenleau not been employed by NRA
in a compliance role or other authorized support role, she
would not have been given Credentials or authorized to
use or access Utility Platform portals. Ex. Z at ¶ 57.
253. In addition to the Utility Platform portals
listed above, the Spreadsheet also contains NRA’s
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Credentials for portals directly associated with six (6) energy and utility companies. Ex. Z at ¶ 58.
254. NRA’s Credentials to these portals allow anyone with an internet connection to access utility company
systems and view and download itemized utility bills. Ex. Z
at ¶ 59.
255. The PII available on these utility portals is
sufficient to aid or allow identity theft, and therefore NRA’s
Credentials to access these portals have value to cyber
criminals. Ex. Z at ¶ 60.
256. NRA obtained Credentials to access these
utility portals only after signing collections contracts with
each company and obtaining any required insurance coverage to provide collections services for those companies.
Ex. Z at ¶ 61.
257. Had Durenleau not been employed by NRA
in a compliance role or other authorized support role, she
would not have been given NRA’s Credentials or authorized to use or access these utility company portals. Ex. Z at
¶ 62.
258. These utility company portals are not accessible to the public, nor can members of the public obtain
access to them through a payment or subscription. Ex. Z at
¶ 63.
259. The Spreadsheet also contains NRA’s Credentials for a third-party skip tracing tool, available
through an online portal (referred to here using the pseudonym “Skip Trace Tool”) which allows its users to access
PII regarding consumers. Ex. Z at ¶ 64.
260. NRA uses Skip Trace Tool to look up consumers who have disputed a debt to confirm relevant information regarding the dispute. Ex. Z at ¶ 65.
261. NRA’s Credentials with Skip Trace Tool allow anyone with an internet connection to search and access consumer PII, including names, social security numbers, dates of birth, addresses and address history, utility
180a
history, contact information (including telephone numbers and e-mail addresses), motor vehicle history, bankruptcies, liens, judgments, deeds and real property ownership information, and business affiliations. Ex. Z at ¶ 66.
262. The PII available through Skip Trace Tool’s
online portal is sufficient to aid or allow identity theft, and
therefore Credentials to access Skip Trace Tool have value
to cyber criminals. Ex. Z at ¶ 67.
263. NRA obtained access to Skip Trace Tool
through a subscription contract with the company that
owns Skip Trace Tool. NRA typically pays fees of over
$5,000 per month to utilize Skip Trace Tool. Ex. Z at ¶ 68.
264. Had Durenleau not been employed by NRA
in a compliance or other authorized support role, she
would not have been given NRA’s Skip Trace Tool Credentials or authorized to use or access Skip Trace Tool. Ex. Z at
¶ 69.
265. In addition to the utility portals listed, the
Spreadsheet includes Credentials for three additional NRA
clients. Ex. Z at ¶ 70.
266. The Spreadsheet also contains NRA’s Credentials for a web portal operated by a third-party receivables management company and payroll processor that
has many gym and fitness company clients (referred to
here using the pseudonym “Fitness Client”). NRA collects
debts on behalf of Fitness Client. Ex. Z at ¶ 71.
267. NRA’s Credentials to Fitness Client’s portal
allow anyone with an internet connection to access PII for
gym members and other customers of fitness companies
who work with Fitness Client, including names, addresses,
social security numbers, and contact information. Ex. Z at
¶ 72.
268. The PII available on Fitness Client’s portal is
sufficient to aid or allow identity theft, and therefore NRA’s
Fitness Client Credentials have value to cyber criminals.
Ex. Z at ¶ 73.
181a
269. NRA obtained Credentials to access Fitness
Client’s web portal when it entered into a contract with Fitness Client to provide collections services. Ex. Z at ¶ 74.
270. NRA asked Fitness Client to provide Durenleau with Credentials and access to Fitness Client’s web
portal. Ex. Z at ¶ 75.
271. Had Durenleau not been employed by NRA
in a compliance role or other authorized support role, she
would not have been provided with NRA’s Fitness Client
Credentials or authorized to use or access Fitness Client’s
system. Ex. Z at ¶ 75.
272. Fitness Client’s online portal is not accessible to the public, nor can members of the public obtain access to it through a payment or subscription. Ex. Z at ¶ 76.
273. The Spreadsheet also contains NRA’s Credentials for an online portal associated with one of the
largest buyers of medical debt in the United States (referred to here using the pseudonym “Medical Client”). Ex.
Z at ¶ 77.
274. NRA collects medical debts on behalf of
Medical Client. Ex. Z at ¶ 77.
275. NRA uses the online portal listed on the
Spreadsheet to share information about consumer disputes with Medical Client. Ex. Z at ¶ 78.
276. The portal allows NRA to upload information and documents regarding complaints received
from consumers, the Consumer Financial Protection Bureau (CFPB), state attorneys general, the Better Business
Bureau, or from litigation filed in court. Ex. Z at ¶ 78.
277. The information that NRA uploads onto this
portal includes consumer PII, including but not limited to
names, dates of birth, social security numbers, address, telephone number, e-mail, medical bills, medical diagnosis,
and medical procedures. Ex. Z at ¶ 79.
278. NRA’s Credentials for Medical Client’s portal
allow anyone with an internet connection to view and
182a
download all of the information that NRA has uploaded to
that portal, including consumer PII, for all accounts assigned to NRA for collection. Ex. Z at ¶ 80.
279. The PII available on Medical Client’s portal
is sufficient to aid or allow identity theft, and therefore
NRA’s Credentials for Medical Client’s portal have value to
cyber criminals. Ex. Z at ¶ 81.
280. NRA obtained Credentials to access Medical
Client’s portal when it entered into a contract with Medical
Client to provide collections services. Ex. Z at ¶ 82.
281. Had Durenleau not been employed by NRA
in a compliance role or other authorized support role, she
would not have been provided with NRA’s Credentials for
Medical Client or authorized to use or access its online portal. Ex. Z at ¶ 83.
282. Medical Client’s portal is not accessible to
the public, nor can members of the public obtain access to
it through a payment or subscription. Ex. Z at ¶ 84.
283. The Spreadsheet also contains NRA’s Credentials for an online portal used by an emergency medical
services (EMS) provider (referred to here using the pseudonym “EMS Client”). NRA collects medical debts on behalf of EMS Client. Ex. Z at ¶ 85.
284. EMS Client gave NRA Credentials and access
to an online portal operated by EMS Client’s billing services provider so that NRA could utilize the information in
that portal to provide collection services. Ex. Z at ¶ 86.
285. NRA’s Credentials for EMS Client’s password-protected online portal allow anyone with an internet connection to access PII for customers of EMS Client
from 2018 to the present, including but not limited to
names, billing codes, social security numbers, information
about services, supplies and medications provided during
transport, copies of all statements sent to the patient before charge-off, insurance information if applicable, and
183a
other information regarding medical treatment. Ex. Z at ¶
87.
286. The PII available on EMS Client’s online portal is sufficient to aid or allow identity theft, and therefore
NRA’s Credentials for EMS Client’s portal have value to
cyber criminals. Ex. Z at ¶ 88.
287. NRA obtained Credentials to access EMS Client’s online portal when it entered into a contract with
EMS Client to provide collections services. Ex. Z at ¶ 89.
288. Had Durenleau not been employed by NRA
in a compliance role or other authorized support role, she
would not have been provided with NRA’s Credentials to
EMS Client’s online portal or authorized to use or access
that portal. Ex. Z at ¶ 90.
289. EMS Client’s online portal is not accessible
to the public, nor can members of the public obtain access
to it through a payment or subscription. Ex. Z at ¶ 91.
290. The Spreadsheet also contains NRA’s Credentials for the Consumer Financial Protection Bureau
(CFPB) information system. Ex. Z at ¶ 92.
291. NRA accesses the CFPB information system
to access and respond to consumer complaints filed
against NRA with the CFPB, often in response to NRA’s efforts to collect debts on behalf of its customers. Ex. Z at ¶
93.
292. NRA’s Credentials for the CFPB information
system allow anyone with an internet connection to access
PII for consumers who have made a CFPB complaint
against NRA, including but not limited to names, dates of
birth, social security numbers, address, telephone number,
e-mail, and information regarding the debt being disputed
(which may include medical bills, utility bills, or other protected information such as information about medical
treatment). Ex. Z at ¶ 94.
293. If consumers making a complaint opt to provide the CFPB with copies of their medical bills or other
184a
documents pertinent to the debt being disputed, NRA’s
CFPB Credentials allow anyone with an internet connection to view and download those documents as well. Ex. Z
at ¶ 95.
294. The PII available on the CFPB information
system is sufficient to aid or allow identity theft, and therefore NRA’s CFPB Credentials have value to cyber criminals.
Ex. Z at ¶ 96.
295. Had Durenleau not been employed by NRA
in a compliance role or other authorized support role, she
would not have been given NRA’s CFPB Credentials or authorized to use or access the CFPB information system. Ex.
Z at ¶ 97.
296. The CFPB information system is not accessible to the public, nor can members of the public obtain access to it through a payment or subscription. Ex. Z at ¶ 98.
297. The Spreadsheet also contains NRA’s credentials for the Better Business Bureau (BBB) business
login portal for the BBB serving Metro Washington, DC and
Eastern Pennsylvania. This portal allows NRA to access its
BBB Business account. Ex. Z at ¶ 99.
298. NRA uses the BBB login portal to access and
respond to complaints filed against NRA with the BBB, often in response to NRA’s efforts to collect debts on behalf
of its customers. Ex. Z at ¶ 100.
299. NRA’s BBB Credentials allow anyone with an
internet connection to access PII for consumers who have
made a complaint against NRA with the BBB, including but
not limited to names, dates of birth, social security numbers, address, telephone number, e-mail, and information
regarding the debt being disputed (which may include
medical bills, utility bills, or other protected information
such as information about medical treatment). Ex. Z at ¶
101.
300. If consumers making a complaint opt to provide the BBB with copies of their medical bills or other
185a
documents pertinent to the debt being disputed, NRA’s
BBB Credentials allow anyone with an internet connection
to view and download those documents as well. Ex. Z at ¶
102.
301. The PII available on NRA’s BBB Business account is sufficient to aid or allow identity theft, and therefore NRA’s BBB Credentials have value to cyber criminals.
Ex. Z at ¶ 103.
302. Had Durenleau not been employed by NRA
in a compliance role, she would not have been given NRA’s
BBB Credentials or authorized to use or access NRA’s BBB
Business account. Ex. Z at ¶ 104.
303. NRA’s BBB Business account is not accessible to the public, nor can members of the public obtain access to it through a payment or subscription. Ex. Z at ¶ 105.
304. The Spreadsheet also contains NRA’s credentials for the IC Dialer online portal, along with a URL to
access the online portal. Ex. Z at ¶ 106.
305. IC Dialer is a phone system that NRA previously used for company-wide collections phone calls until
it switched to another system in 2021. NRA’s subsidiary,
Extended Business Office Solutions LLC (“EBO”), still uses
IC Dialer to record company-wide billing calls. Ex. Z at ¶
107.
306. IC Dialer allows NRA and EBO to capture audio recordings of calls placed to collect bills and debts on
behalf of their customers. Those audio recordings are then
stored on IC Dialer’s online portal for NRA and EBO. Ex. Z
at ¶ 108.
307. Audio recordings of collections calls going
back to 2018 are stored in NRA/EBO’s IC Dialer portal. Ex.
Z at ¶ 109.
308. NRA’s IC Dialer Credentials allow anyone
with an internet connection to access and download audio
recordings of all calls that NRA and EBO employees made
for billing and collections purposes. Ex. Z at ¶ 110.
186a
309. These audio recordings typically contain
consumer PII, including but not limited to consumer
names, social security numbers, addresses, phone numbers, and medical information. Ex. Z at ¶ 110.
310. The PII available on NRA’s IC Dialer portal is
sufficient to aid or allow identity theft, and therefore NRA’s
IC Dialer Credentials have value to cyber criminals. Ex. Z at
¶ 111.
311. NRA obtained Credentials to access the IC
Dialer portal when it entered into a contract with an IC
Dialer for telecom services. Ex. Z at ¶ 112.
312. In her compliance role, Durenleau had more
extensive access to IC Dialer than NRA’s collectors, who
had limited access. Ex. Z at ¶ 113.
313. The Credentials in the Spreadsheet allow the
user to both listen to and download recordings of phone
calls. Ex. Z at ¶ 113.
314. Had Durenleau not been employed by NRA,
she would not have been given NRA’s IC Dialer Credentials
or authorized to use or access NRA’s IC Dialer portal. Ex. Z
at ¶ 114.
315. NRA’s IC Dialer portal is not accessible to the
public, nor can members of the public obtain access to it
through a payment or subscription. Ex. Z at ¶ 115.
316. The Spreadsheet also contains Credentials
for the Nationwide Multistate Licensing System & Registry
(“NMLS”) for NRA and EBO, as well as separate NMLS Credentials for NRA’s owners, Steve Kusic and Jill Kusic. Ex. Z
at ¶ 116; Ex. B at 533:6-17.
317. The Spreadsheet includes six (6) sets of
NMLS Credentials, each including a six- or seven-digit
NMLS ID, username, and password: (a) one set of Credentials for NRA; (b) one set of Credentials for EBO;(c) three
(3) sets of Credentials for Steve Kusic; and (d) one set of
Credentials for Jill Kusic. Ex. Z at ¶ 116.
187a
318. NRA and EBO use NMLS to maintain and
keep current their collections licenses in various states. Ex.
Z at ¶ 117.
319. NMLS has an online portal to allow authorized users with Credentials to log in from the web. Ex. Z at
¶ 118.
320. Many states require the submission of background checks and PII for the owners of companies seeking licensure. Ex. Z at ¶ 119.
321. In addition, some states require submission
of background checks and PII for a manager employed by
a company seeking licensure. Ex. Z at ¶ 120.
322. The NMLS Credentials in the Spreadsheet
would allow anyone with an internet connection to access
PII regarding NRA’s owners, Steve Kusic and Jill Kusic, including but not limited to social security numbers, dates of
birth, address, telephone, e-mail, background checks and
credit reports. Ex. Z at ¶ 121.
323. The NMLS Credentials in the Spreadsheet
would also allow anyone with an internet connection to access PII regarding one of NRA’s managers, Ashley Johnson,
whose information was provided to NMLS as part of the
state licensing process. Ex. Z at ¶ 122.
324. The PII available on NMLS’s online portals
for Steve Kusic and Jill Kusic is sufficient to aid or allow
identity theft, and therefore the NMLS Credentials on the
spreadsheet have value to cyber criminals. Ex. Z at ¶ 123.
325. Had Durenleau not been employed by NRA
in a compliance role, she would not have been given NMLS
Credentials for NRA, EBO, Steve Kusic or Jill Kusic, and
would not have been authorized to use or access NMLS on
behalf of NRA, EBO, Steve Kusic or Jill Kusic. Ex. Z at ¶ 124.
326. The NMLS online portals for NRA, EBO,
Steve Kusic and Jill Kusic are not accessible to the public,
nor can members of the public obtain access to these portals through a payment or subscription. Ex. Z at ¶ 125.
188a
327. The Spreadsheet also contains Credentials
for Sonnet, a software program developed by Palinode that
NRA uses to investigate credit disputes. Ex. Z at ¶ 126.
328. Sonnet has an online portal allowing anyone
with an internet connection and the proper Credentials to
access the application. This link is also listed on the
Spreadsheet. Ex. Z at ¶ 127.
329. NRA’s Sonnet Credentials allow anyone with
an internet connection to view and download Personal
Identifiable Information (“PII”) for every consumer currently disputing a debt placed with NRA, including their
names, social security numbers, dates of birth, addresses,
phone numbers, and details regarding the amount and nature of the debt in question. Ex. Z at ¶ 128.
330. Because consumers who wish to properly
challenge a debt must dispute it with both the creditor and
the CRA reporting the debt, the Sonnet portal includes information regarding a large number of consumers. Ex. Z at
¶ 129.
331. The PII available on Sonnet is sufficient to
aid or allow identity theft, and therefore NRA’s Sonnet Credentials have value to cyber criminals. Ex. Z at ¶ 130.
332. NRA obtained Credentials to access the Sonnet web portal when it entered into a contract with Palinode to use the Sonnet software. Ex. Z at ¶ 131.
333. NRA was still actively using Sonnet when the
Spreadsheet was e-mailed on January 7, 2021. Ex. Z at ¶
131.
334. Had Durenleau not been employed by NRA,
she would not have been given NRA’s Sonnet Credentials
or authorized to use or access NRA’s Sonnet account. Ex. Z
at ¶ 132.
335. The Sonnet web portal is not accessible to
the public, nor can members of the public obtain access to
it through a payment or subscription. Ex. Z at ¶ 133.
189a
III.
ADDITIONAL FACTS PERTINENT TO DEFENDANT DURENLEAU’S BREACH OF DUTY
OF LOYALTY (COUNT VIII)
336. Daube reviewed Durenleau’s NRA e-mail inbox after her resignation and learned of issues regarding
EBO’s Wyoming license renewal. Ex. J at 59:15-60:13,
138:6-15; Ex. AA at ¶ 46.
337. On February 25, 2021, Daube discovered a
deficiency notice, sent to Durenleau’s attention via NMLS
on January 29, 2021, indicating that EBO needed to provide additional information to the Wyoming Collection
Agency Board by February 5, 2021. Ex. AA at ¶ 47.
338. Part of Durenleau’s job responsibilities included following up on deficiency notices such as the Wyoming notice sent to her NMLS inbox on January 29, 2021.
Ex. AA at ¶ 48.
339. Durenleau never informed Daube of this additional issue with Wyoming. Ex. AA at ¶ 49.
340. Based on Daube’s review of Durenleau’s
NRA e-mail account, she discovered that Durenleau did not
take any action to address this additional Wyoming deficiency notice. Ex. AA at ¶ 50.
341. At 3:40 p.m. on February 25, 2021, Daube informed her supervisor, Shell Sharma, that EBO’s Wyoming
license renewal was terminated because of this issue. Ex.
AA at ¶ 51, Ex. AA-5.
342. As a result of this license renewal termination, EBO Solutions, LLC, doing business as National Recovery Agency, was unable to engage in any collections activities in the State of Wyoming between February 25, 2021,
and November 17, 2021, when EBO’s Wyoming license
was reinstated. Ex. J at 151:4-14; Ex. AA at ¶ 52; Ex. FF at
“NRA002760.”
190a
IV.
FACTS PERTINENT TO DEFENDANT DURENLEAU’S FRAUDULENT ACCOUNT TRANSFERS
(COUNT IX)
343. In order for an NRA employee to collect a bonus, the employee would “have to do something to the account in order to aid the consumer to make a payment.” Ex.
K at 14:7-10.
344. If an employee does not perform the work to
bring in the money to satisfy the debt, then the employee
is not entitled to a bonus. Ex. K at 14:18-22, 31:23-25.
345. NRA uses workgroups to identify whether a
collection action belongs to a specific employee for purposes of bonuses and commissions. Ex. K at 31:18-22.
346. All work group transfers are tracked by
NRA’s debt collection computer system, DM-10. Ex. A at
164:10-12; Ex. K at 39:21-24.
347. The DM-10 system is the collection system
that everyone works off of at NRA. Ex. K at 39:21-24.
348. If someone goes into an account to move it,
their name is automatically attributed to that movement in
the system. Ex. K at 47:11-15.
349. There is no way to move an account without
your name being attributed to the account. Ex. K at 47:1618.
350. The compliance work group was Durenleau’s work group. Ex. K. at 31:23-25.
351. During the time when Durenleau worked in
compliance, she moved multiple accounts into the compliance work group. Ex. A at 126:6-127:25.
352. Durenleau moved these accounts in order to
receive a bonus. Ex. A at 128:1-4; Ex. J at 31:3-5.
353. Durenleau was paid commissions based on
the workgroup transfers that she made. Ex. B at 530:1417.
354. IT employee Greg Dickensheets showed Durenleau how to move accounts into the compliance work
191a
group after payment had already been made. Ex. A at
141:8-18.
355. Durenleau testified that Mr. Dickensheets
“showed me real quick – he was like, ‘This is how you steal
them back.’” Ex. A at 142:22-24.
356. Beginning towards the end of 2019, Durenleau moved approximately 200 or 300 accounts per month
into the compliance work group. Ex. A at 147:18-148:11.
357. Durenleau also moved payments that had already been made back into the compliance work group.
Ex. A at 164:3-9.
358. Durenleau moved a total of $3,042.85 in
payments after the payment was originally posted in January 2011. Ex. A at 165:10-18; Ex. C at “ND 9.”
359. Durenleau moved these accounts and payments using DM-10. Ex. A at 162:23-162:17.
360. Durenleau recognized that her computer
fingerprint was on everything that she changed in this system. Ex. A at 164:10-12.
361. On January 22, 2021, Durenleau sent an email to recovery supervisors at NRA, with Lisa Daube in
copy, asking to “Please advise reps-again-not to take accounts out of compliance workgroup.” Ex. AA-4; Ex. J at
31:20-32:2.
362. After Durenleau sent this e-mail, Daube
asked Durenleau to explain why she sent the e-mail. Ex. J
at 32:5-7.
363. Daube had a one-on-one meeting with Durenleau in her office. Ex. J at 33:1-14.
364. During that meeting, Durenleau explained
that collectors should not be moving accounts out of the
compliance work group. Ex. J at 33:20-23.
365. Daube then asked Durenleau for an example
account, and Durenleau and Daube reviewed the example
account. Ex. J at 33:23-24; Ex. C at “ND 9.”
192a
366. Daube then advised Durenleau that she did
not agree with Durenleau. Ex. J at 33:24-25.
367. Daube stated that felt that Durenleau was
engaging in inappropriate actions and fraud. Ex. J at 38:1218.
368. At the time this issue arose, Anita Schaar
(“Schaar”) was the Director of Internal Controls for NRA.
Ex. J at 39:24-40:1; Ex. K at 32:9-14.
369. In this role, Schaar was responsible for making sure that everyone at NRA was following all applicable
policies and procedures to get work done. Ex. K at 10:1-8.
370. Prior to her retirement in September of
2021, Schaar had been employed by NRA for 39 years. Ex.
K. at 8:17-9:2.
371. In January 2021, Schaar conducted an audit
of accounts that had been changed into the compliance
workgroup. Ex. K at 30:20-31:8.
372. Schaar’s audit covered January of 2021. Ex.
K at 32:15-20.
373. No one else assisted Schaar in her audit. Ex.
K at 41:15-17.
374. To conduct the audit, Schaar first ran a report from NRA’s DM-10 system that showed all workgroup
changes into the compliance workgroup between January
1, 2021 and January 27, 2021. Ex. K at 39:16-20.
375. For each account that was moved to compliance from 1/1/21 to 1/27/21, Schaar stated that she took
the consumer ID number and pulled that number up on the
DM-10 system to see when an e-mail was put on there,
when the workgroup was changed, if there was a payment
was made, when the payment was made, and whether the
payment workgroup was changed as well. Ex. K at 43:417.
376. Schaar stated that she looked at everything
that was done on the accounts that were moved. Ex. K at
43:17-18.
193a
377. During the audit, Schaar stated that she saw
things in the movement process that concerned her. Ex. K
at 44:14-16.
378. Schaar stated that she was concerned about
the accounts that were changed into the compliance
workgroup after the payment was made. Ex. K at 44:1720.
379. Schaar stated that this concerned her because if the payment was already made on the account,
there was no need to change it into the compliance
workgroup. Ex. K at 44:21-24.
380. If an account was already paid, Schaar stated
that she considered that account an NRA house account.
Ex. K at 44:24-25.
381. Schaar stated that she was also concerned
that by moving an NRA house account after payment had
already been made, Durenleau would get credit for the
payment that was received without doing anything to
bring that payment in. Ex. K at 45:1-5.
382. For the time period of the audit (1/1/21 to
1/27/21) Schaar concluded that there were 146 instances
that Durenleau moved accounts. Ex. K at 60:14-17; Ex. K
at “Schaar Ex. 6.”
383. Schaar concluded that there were 11 instances where Durenleau moved accounts after payment
was received, and Durenleau changed the pay group as
well. Ex. K at 49:3-7; Ex. K at “Schaar Ex. 6.”
384. Schaar determined that, in order to move
those 11 payments in the compliance workgroup, Durenleau had to change the workgroup to compliance, find the
payment, and then change the workgroup on the payment
as well. Ex. K at 65:2-66:7.
385. During the audit, Schaar received a phone
call from Durenleau. Ex. K at 48:1-4; Ex. A at 160:7-161:10.
386. Durenleau asked why Ms. Schaar was “poking around at her accounts.” Ex. K at 48:25-49:2.
194a
387. Durenleau, asked Schaar: “did I do something wrong?” Ex. K at 48:1-49:2; Ex. A at 161:7-10.
388. At the time of the audit, Kira West (“West”)
was the manager of client services at NRA. Ex. K at 41:8-20
389. West verified the audit conducted by Schaar.
Ex. K at 41:8-20, 45:1-5; Ex. A at 160:7-161:10.
390. Schaar testified that she considered these
transfers to be fraud against NRA. Ex. K at 49:8-10.
391. Schaar testified that she considered these
transfers to be theft from NRA. Ex. K at 49:24-50:1.
392. Daube testified that “Durenleau was inappropriately and falsely taking credit for accounts so that
she would bonus.” Ex. J at 31:3-5.
393. Daube testified that this fraud and theft was
the most severe offense an employee could commit. Ex. J
at 46:8-22.
394. Another NRA employee, Chris Bowen
(“Bowen”), testified that, in order to qualify for a bonus, the
individual needs to perform work on the account in order
to receive a bonus. Ex. II at 40:1-41:13.
395. Bowen testified that Durenleau was “cherrypicking accounts that would have a greater possibility of
payments than other accounts” such that she could financially benefit. Ex. II at 42:18-44:22.
396. West testified that she believed that Durenleau should have been terminated “because she was stealing from the company and stealing from collectors.” Ex. JJ
at 59:24-60:1; 70:1-4
397. Schaar stated that, in her view, Durenleau
was not entitled to any bonus on those accounts because
she did nothing to bring that money in. Ex. K at 49:11-14.
398. Schaar recalled that other NRA employees
had been fired for doing the same thing. Ex. K at 49:2450:1.
195a
399. Schaar stated that she believed that Durenleau should have been fired for making these transfers. Ex.
K at 59:13-14.
PART II
UNDISPUTED
FACTS
SUPPORTING
SUMMARY
JUDGMENT
DUE
TO
DEFENDANTS’ LACK OF
STANDING
V.
DURENLEAU IS NOT SEEKING MONEY DAMAGES
400. Durenleau testified, multiple times, that she
is not seeking monetary compensation in this case. Ex. A
at 275:5-277:5.
401. First, when asked “This is a demand for
money. What was it that you wanted?” Durenleau responded “Oh, so you’re trying to say I want money. No.
What I wanted was for the girls that will not come forward,
that were my friends, that have texted me, emailed me,
called me crying, sat in my office because I was the compliance person, the only person they trusted to go to about all
these things, what I want is for what’s happening there to
stop.” Ex. A at 275:5-15 (emphasis added).
402. Durenleau went on to state “I don’t care
about money. And if that’s what you think, fine, but I don’t
care about money.” Ex. A at 275:15-17.
403. When asked “So this case is not about money
to you?” Durenleau responded “It’s not about money for
me. It’s about – look, no one liked Rosa Parks when she
gave up her freaking seat on the bus to stand up for a bunch
of people. That’s what I’m doing.” Ex. A at 275:19-23.
404. When asked “So you’re not seeking monetary compensation?” Durenleau replied “Money is not why
I’m doing it, no. It never has been.” Ex. A at 276:4-8.
196a
405. When asked “Is your answer ‘no,’ you are not
seeking monetary compensation?” Durenleau answered
“Correct. My answer is no.” Ex. A at 277:3-5.
406. At the conclusion of Durenleau’s deposition,
Durenleau’s counsel did not ask Durenleau any questions.
Ex. B at 634:5-9.
VI.
BADACZEWKSI IS NOT SEEKING MONEY
DAMAGES
407. Badaczewski testified that she is not seeking
money from NRA. Ex. F at 472:14-25.
408. In regard to damages, Badaczewski testified
“[s]omething needs to be done about Steve Kusic and Shell
Sharma and NRA as a whole […].” Ex. F at 472:14-25.
409. Badaczewski testified that “NRA needs to -it needs to be shut down, and Steve, Shell they need to be
stopped, I mean, just -- there's victims that aren't coming
forward, and there's – I know there's new victims probably
there, too. But it's just -- it needs to be -- it needs to stop.”
Ex. F at 467:21-25.
410. At the conclusion of Badaczewski’s deposition, Badaczewski’s counsel did not ask Badaczewski any
questions. Ex. F at 487:1-2.
PART III
UNDISPUTED
FACTS
SUPPORTING
SUMMARY
JUDGMENT ON DEFENDANT
DURENLEAU’S
COUNTERCLAIMS
VII.
FACTS PERTINENT TO DURENLEAU’S HARASSMENT COUNTERCLAIMS (COUNTS ONE
AND FOUR)
197a
A. Durenleau’s Mentor Relationship with Shell
Sharma
411. Shell Sharma (“Sharma”) is the Chief Operating Officer of NRA, and supervised Durenleau during portions of her employment. Ex. B at 423:7-8, 468:21.
412. Durenleau was the same age as Sharma’s
daughter. Ex. A at 187:12-14.
413. Durenleau and Sharma’s daughter both
graduated from the same high school in 2008. Ex. A at
187:7-11.
414. Sharma took an interest in Durenleau’s wellbeing. Ex. A at 187:15-17.
415. Sharma told Durenleau that she was “like his
daughter and he was like my father figure because I graduated with his daughter.” Ex. A at 187:17-19.
416. Sharma was responsible for every one of Durenleau’s promotions at NRA. Ex. A at 188:9-12
417. Durenleau and Sharma had a “different relationship.” Ex. A at 264:17-18.
418. Sharma treated Durenleau differently from
other employees. Ex. A at 264:18-19.
419. Durenleau would sometimes walk into
Sharma’s office, uninvited, if the door was open and she
had a work-related problem. Ex. A at 186:11-15.
420. Durenleau sometimes talked to Sharma
when she didn’t have a work-related problem, just to see
how he was doing. Ex. A at 186:16-19.
421. Durenleau would talk to Sharma about how
his weekend went, or how his kids were doing. Ex. A at
186:25-187:5.
422. There were time when, for holidays, Durenleau didn’t need to use her paid time off. Ex. A at 203:4-5.
423. Sharma “had [Durenleau’s] back.” Ex. A at
264:24.
424. Sharma was the one person at NRA who always raised Durenleau up. Ex. A at 265:13-15.
198a
425. Durenleau was “really trusted” by Sharma.
Ex. A at 203:14.
426. Durenleau felt that Sharma was “in [her]
corner.” Ex. A at 204:18-19.
427. Durenleau would share some things about
her personal life with Sharma. Ex. A at 188:23-189:3.
428. Durenleau would tell Sharma about her frustrations about the fact that other women at NRA didn’t like
her and would say negative things about her. Ex. A at
191:10-19.
429. By and large, Durenleau was given preferential treatment because Durenleau was a supervisor and
Sharma was her direct supervisor. Ex. A at 204:25-205:7.
B. Timeline of Durenleau’s Employment
430. Durenleau started working for NRA on September 15, 2014. Ex. C at 38:1-2.
431. Durenleau’s first job title with NRA was a
Collector, making and taking calls to and from debtors. Ex.
C at 40:8-17.
432. After less than two weeks, Sharma promoted Durenleau from Collector to Client Services Representative. Ex. C at 40:20-41:1, 47:9-13.
433. Durenleau held the position of Client Services Representative from September of 2014 through
February of 2015. Ex. D at “ND 11-A” at 2; Ex. B at 551:24552:22.
434. Sharma then promoted Durenleau to the
Support Services and Consumer Resolution Team (also referred to as “CRT”). Ex. D at “ND 11-A” at 2; Ex. A at 47:2021.
435. Durenleau held the position of Support Services and CRT Lead from February 2015 to December
2016. Ex. D at “ND 11-A” at 2.
199a
436. Durenleau held the position of Support Services and CRT Assistant Manager from January 2017 to
March 2017. Ex. D at “ND 11-A” at 2.
437. Sharma then promoted Durenleau to the position of Support Services and CRT Manager. Ex. A at
47:23-48:3.
438. Durenleau held the position of Support Services and CRT Manager from March 2017 to September
2018. Ex. D at “ND 11-A” at 2.
439. Ashley Chille (“Chille”), former in-house
counsel for NRA, was Durenleau’s supervisor when Durenleau was the Manager of CRT. Ex. A at 59:23-60:12.
440. Sharma then promoted Durenleau to the position of Support Services, CRT & Compliance Manager. Ex.
A at 48:4-7.
441. Durenleau held the position of Support Services, CRT & Compliance Manager from September 2018 to
December 2019. Ex. D at “ND 11-A” at 1.
442. Durenleau viewed her new compliance role
as a means of advancing herself at NRA. Ex. A at 62:9-11.
443. Chille left NRA in December of 2018. Ex. A at
63:15-64:2; Ex. H at 49:13-22.
444. After Chille left, Durenleau reported directly
to Sharma. Ex. B at 468:21.
445. Prior to resigning, Chille had trained Durenleau on some things, including the National Multistate Licensing System & Registry (NMLS). Ex. A at 62:22-24.
446. Durenleau’s next position was Compliance
Manager, which she held from December 2019 to September 2020. Ex. D at “ND 11-A” at 1.
447. When Durenleau became the Compliance
Manager, she was converted from an hourly employee to a
salaried employee. Ex. A at 50:1-3, 52:13-15.
448. Sharma later promoted Durenleau to the position of Senior Manager of Compliance Services. Ex. A at
48:8-10; Ex. B at 477:23-24.
200a
449. Durenleau held the position of Senior Manager of Compliance Services from September 2020 until
she resigned from NRA on February 21, 2021. Ex. B at
553:4-11; Ex. C at “ND 15”; Ex. D at “ND 11-A.”
450. With each advancement, Durenleau received an increase in pay. Ex. A at 49:15-17.
451. Durenleau first filed a Charge of Discrimination with the EEOC and the Pennsylvania Human Relations
Commission (“PHRC”) on April 23, 2021. Ex. B.
452.
300 days before April 23, 2021 is June 27,
2020. https://www.timeanddate.com/date/dateadd.html.
453.
180 days before April 23, 2021 is October
25, 2020. https://www.timeanddate.com/date/dateadd.html.
C. Untimely Harassment Allegations Against Steve
Kusic
a. Discussion about Public Speaking (2016
or Prior)
454. Within a year or two after Durenleau’s hire,
Kusic suggested that Kusic and Durenleau picture each
other naked to assist with Durenleau’s fear of public speaking. ECF 142 at ¶ 161(b); Ex. B at 416:10-25, 434:21435:2.
455. The context of this comment was that NRA
wanted Durenleau to do sales, and she did not like being in
front of people. Ex. B at 416:10-18.
456. Durenleau and Kusic were at opposite sides
of a table in an office at the time this comment was made.
Ex. B at 416:13-14.
457. Kusic asked Durenleau whether she was
nervous and Durenleau said yes. Ex. B at 435:12-13.
458. Kusic then stated “imagine you’re in front of
all these people and they’re all sitting at a table.” Ex. B at
435:14-15.
201a
459. Kusic then asked Durenleau “does it help
you to be comfortable if I picture you naked and you picture me naked”? Ex. B at 435:17-18.
460. This was the first incident of alleged sexual
harassment that Durenleau could recall. Ex. B at 416:1018.
461. At the time of this “named” comment, Durenleau had a Consumer Resolution Team (CRT) job title,
and Ashley Chille had not yet resigned. Ex. B at 424:5-16.
b. “Blonde” Comments (2015 or Prior)
462. Kusic made the following comments referring to Durenleau: “oh here’s the blonde again” and “I’m
talking to a blonde.” ECF 142 at ¶ 161(c); Ex. B at 436:23438:3.
463. The context of the statement was that Kusic
had asked a question in a group setting, and Durenleau
came up to answer it. Ex. B at 438:4-439:5.
464. The last time Durenleau was blonde was
when she was 23 or 24 years old. Ex. B at 437:7-438:3.
465. Durenleau was 24 years old at the time she
was hired by NRA. Ex. B at 438:1-3.
466. After the comment, Durenleau walked away
and did not report the comment to anyone. Ex. B at 439:813.
c. Skinny Dipping Comment (2016 or 2017)
467. Kusic made a comment about how another
employee, Autumn Ware, went to Las Vegas with him, and
got so drunk that she went skinny dipping. ECF 142 at ¶
161(d); Ex. B at 439:14-443:16.
468. Mr. Kusic then told Durenleau “I want to see
how drunk you’re gonna get.” Ex. B at 441:13-14.
469. After the comment, Durenleau walked away
and told Shell Sharma. Ex. B at 442:1-3.
470. Sharma told Durenleau that NRA was not
making Durenleau go to Las Vegas with Kusic. Ex. B at
442:4-7.
202a
471. The conference had just occurred, and Kusic
wanted Durenleau to go to the next one that came up in
approximately two years. Ex. B at 442:17-22.
472. Durenleau did not go to the conference. Ex.
B at 422:17-18.
473. This comment took place in Durenleau’s second or third year, when NRA was trying to get Durenleau
to be a sales representative. Ex. B at 439:24-440:6.
474. At the time of this comment, Durenleau had
a CRT job title. Ex. B at 443:13-16.
d. Jokes About Mr. Kusic’s Sexual Interest
(2018 or Prior)
475. During the first two years of Durenleau’s
employment, Tasey Leitzell, Anita Schaar, and Shell
Sharma joked about Durenleau sleeping with Kusic. Ex. B
at 456:25-457:10, 481:9-17.
476. Ms. Leitzell, Mr. Schaar and Mr. Sharma
joked that they wanted Durenleau “to go occupy him
[Kusic] so he would leave them the hell alone.” Ex. B at
457:10-12.
477. In Shell Sharma’s office, several employees
joked that Durenleau should “go do it like Taylor,” a former
employee who Kusic was allegedly “obsessed with” and
had supposedly bought or promised a Range Rover. Ex. B
at 420:5-421:5.
478. The interaction regarding “Taylor” occurred
in Mr. Sharma’s office in Crossgate in 2017 or 2018. Ex. B
at 421:7-9.
479. NRA sold the Crossgate building in 2019. Ex.
B at 421:8-9.
480. Several female employees, Tasey Leitzell,
Anita Scharr, Biancha Tatum, and Kira West, used to joke
about “having to clean up the mess after.” Ex. B at 421:1719.
203a
481. Durenleau responded to this statement by
laughing and saying “that would be disgusting.” Ex. B at
422:17-18.
482. Durenleau also stated that Kusic “can’t afford me.” Ex. B at 422:18-19, 423:17-21.
483. Durenleau also stated that “I would never
take anything from [Kusic] to blow him or to screw him.”
Ex. B at 423:21-22.
484. Durenleau never reported these jokes to anyone. Ex. B at 422:25-423:9.
485. Kusic testified that he had no knowledge of
any conversations of a sexual nature at NRA Group. Ex. N
at 60:19-61:18.
e. Discussion about Weekend Activities (between 2016 and Dec 2019)
486. On one occasion when Durenleau was walking through the collection floor to her desk, Kusic asked
Durenleau “hu, hu, hu, how well does your man have it at
home, tell me a joke.” ECF 142 at ¶ 161(a); Ex. B at 426:19428:1.
487. Kusic made this comment to Durenleau
when she had a CRT job title. Ex. B at 427:4-14.
488. At the time Kusic made this comment, Durenleau had been employed by NRA for “a couple years”
but “more than two.” Ex. B at 432:6-13.
489. Kusic asked Durenleau “what did I do over
the weekend; were you with your boyfriend; what did you
guys do; how well does he have it at home”? Ex. B at 429:912.
490. Kusic did not say anything else to Durenleau
at that time. Ex. B at 429:22-25.
491. Durenleau then walked away from Kusic.
Ex. B at 429:22-25.
f. Cheese Curl Incident (2017 or 2018)
204a
492. When Durenleau was in the position of Support Services and CRT Manager, Kusic wiped a cheese curl
on her lips. ECF 142 at ¶ 162(a); Ex. B at 499:7-503:16.
493. Kusic came up to Durenleau, “took a cheese
curl out of a bag, wiped it across my lips, looked at me
funny, and walked away.” Ex. B at 499:16-18.
494. Sharma later told Durenleau that he had addressed this issue with Kusic. Ex. B at 502:3-16.
495. After Sharma spoke with Kusic about this issue, Kusic never touched Durenleau’s lips with food again.
Ex. B at 503:14-16.
g. RYUK Malware Incident (2019)
496. In 2019, NRA’s computer systems were impacted a type of ransomware known as RYUK. Ex. I at
354:18-19, 356:12-23.
497. Durenleau believed that this malware incident occurred because Kusic was watching pornography in
his office and clicked on the wrong link. Ex. A at 197:1517.
498. Durenleau never saw Kusic watching pornography in his office. Ex. A at 198:22-25; Ex. B at 478:1418.
499. Durenleau only heard about Mr. Kusic’s alleged watching of pornography from others. Ex. A at
198:22-25.
D. Non-Sexual Comments Alleged by Durenleau
a. Comments about Durenleau’s Clothing
Choices
500. NRA has a Personal Appearance (Dress
Code) policy. Ex. CC-2 at “NRA0221-0223.”
501. The Personal Appearance policy states that
“spandex or other form fitting pants” are inappropriate.
Ex. CC-2 at “NRA0222.”
502. The Personal Appearance policy also states
that “[d]ress and skirt length should be no more than 4
205a
inches above the knee” and that “[s]hort, tight skirts that
ride halfway up the thigh are inappropriate for work.” Ex.
CC-2 at “NRA0222-223.”
503. Tasey Leitzell handles employee relations
and HR at NRA. Ex. A at 194:19-20.
504. On multiple occasions, Sharma told Durenleau that Ms. Leitzell had an issue about what Durenleau
was wearing that day, and that her pants were too tight or
her skirt was too short. Ex. B at 453:11-17.
505. Sharma never told Durenleau that she was a
slut or that she was “trying to sleep [her] way to the top.”
Ex. B at 456:7-11.
506. Sharma was reporting to Durenleau what he
heard others say about her. Ex. B at 456:12-15.
507. Sharma would then tell Durenleau “Nicole,
fuck them. Who cares. They’re jealous.” Ex. B at 458:2123.
508. On another occasion, Durenleau needed
help setting up a new insurance that NRA was using. Ex. B
at 495:7-13.
509. At that time, Durenleau overhead Ms. Leitzell talking to two other women in her office, with the door
open, “saying that I [Durenleau] live at home at 30, I
shouldn’t have any help from the company, I should pay for
all my insurance on my own.” Ex. B at 495:14-17.
510. During that conversation with the other two
women, Ms. Leitzell made a comment suggesting that Durenleau did not dress appropriately in the workplace. Ex.
B at 495:18-20.
b. Comments about Ashley Johnson’s Weight
511. On various occasions, Sharma commented
that Ashley Johnson was more focused on food than work.
ECF 142 at ¶ 161(n); Ex. B at 486:10-13, 488:11-489:11.
512. Durenleau could not identify when these
statements were made. Ex. B. at 490:16-18.
206a
513. Durenleau recalled that on one occasion in
2015 or 2016, when Ms. Johnson’s desk was being moved
from one NRA office to another, Tasey Leitzell and Shell
Sharma were complaining about having to “clean out all
her drawers full of food.” Ex. B at 490:22-491:11.
514. Sharma “had a face in the office that was for
Ashley” that he would make at other employees during
meetings. Ex. B at 486:12-13, 488:24-489:3.
515. Durenleau described the face that Mr.
Sharma would make as a “fat kid face.” Ex. A at 250:4-5.
516. The person who was the recipient of the
“face” would laugh, but according to Durenleau, Ms. Johnson “didn’t know what the hell was going on.” Ex. B at
489:3-5.
E. Inappropriate Sexual Comments Made by Durenleau
517. Prior to the November 20, 2020, incident,
Durenleau felt that Shell Sharma considered her “one of
the guys.” Ex. A at 200:22-25.
518. In front of Sharma and NRA employees Tasey Leitzell and Anita Scharr, Durenleau stated that she
didn’t want to have a child because “I don’t want one hole
to stretch to the other hole – well, rip. I actually said rip. I
don’t want it to rip to the other hole because I don’t want
to whistle when I walk.” Ex. A at 193:4-17.
519. Durenleau did not believe that this was an
appropriate statement for the workplace. Ex. A at 193:20194:6.
520. During a discussion about Jamie Badaczewski, who was at that time a candidate for employment who had just been interviewed, Durenleau told
Sharma and HR Director Alonzo Hankerson that “I could
get her before you.” Ex. B at 484:10-13.
207a
521. In making this statement, Durenleau meant
that “I could date her [Badaczewksi] before she even tries
to screw one of you two.” Ex. B at 485:1-7.
522. During that same discussion, Durenleau
commented about what Badaczewski was wearing “because she looked cute as hell.” Ex. B at 483:9-10.
F. Alleged Sexual Comments Not Directed Towards Durenleau
a. Alleged Comments about Autumn Ware
(2019 or Prior)
523. Sharma made comments about how large
Autumn Ware’s breasts were. Ex. B at 460:19-25.
524. Sharma did not just make these comments
to Durenleau, but also to Tasey Leitzell and “anyone that
will listen.” Ex. B at 461:18-19.
525. When Sharma first made these comments,
Durenleau had a CRT job title. Ex. B at 462:23-463:8.
526. Sharma made these comments multiple
times over six-and-a-half years. Ex. B at 462:19-463:11.
527. Durenleau didn’t report these comments to
anyone. Ex. B at 463:15-18.
b. Alleged Comments about Kira West
(2020)
528. In 2020, Shell Sharma made comments indicating that he was sexually interested in employee Kira
West. Ex. B at 444:3-6.
529. Sharma and Mr. Hankerson then began talking about another girl who used to work at NRA that
Sharma was interested in. Ex. B at 444:15-18.
530. In response, Durenleau “just kind of sat
there.” Ex. B at 445:12.
531. Durenleau stated that she “can’t do anything
because her and I aren’t currently friends. So I’m not going
to stick up for her…” Ex. B at 445:18-20.
532. Durenleau did not say anything to Sharma
about this comment. Ex. B at 445:22-23.
208a
533. Durenleau did not ask Sharma to stop making comments of that tone. Ex. B at 446:5-8.
534. Previously, in 2019, Sharma told Durenleau
that West was annoyed that Durenleau was put into the
Compliance Manager position, and that West was “trying
to kiss his ass.” Ex. B at 474:10-475:11.
535. During this discussion, Sharma told Durenleau that West wanted to have sex with him. Ex. B at
474:19-24.
536. Durenleau did not report this comment to
anyone. Ex. B at 475:12-18.
537. Durenleau did not tell West about this comment, because the two women were not talking at the time
and were no longer friends. Ex. B at 476:8-15.
538. Durenleau believed that her and West
stopped being friends because of “[a] lot of drama at work.”
Ex. B at 477:5-7.
539. Ashley Johnson and Kira West “definitely
didn’t like [Durenleau] anymore after [Durenleau] became
Senior Manager [of Compliance].” Ex. B at 477:11-16.
540. Durenleau felt that Shell’s comment about
West “wasn’t my issue.” Ex. B at 475:18-19.
c. Comments Regarding Jamie Badaczewski
(September 2020)
541. Jamie Badaczewski applied to work at NRA
on September 4, 2020. Ex. G at “JB 4.”
542. Badaczewski’s first day at NRA was September 14, 2020. Ex. G at 88:17-19.
543. Durenleau interviewed Badaczewski with
Alonzo Hankerson. Ex. B at 482:17.
544. During the interview, Durenleau and Badaczewski talked about how Durenleau and Badaczewski
both color-coordinated their closets and “the weird quirks
that we have.” Ex. B at 483:20-23.
209a
545. Mr. Hankerson made a comment that the interview was “like watching two puppies fall in love for the
first time.” Ex. B at 483:18-19.
546. After the interview, Durenleau and Mr.
Hankerson went in to talk to Mr. Sharma about whether
NRA would hire Badaczewski. Ex. B at 482:18-19.
547. During this post-interview meeting, Durenleau commented about what Badaczewski was wearing
“because she looked cute as hell.” Ex. B at 483:9-10.
548. Mr. Sharma and Mr. Hankerson made a comment that Badaczewski was “the kind of girl Steve [Kusic]
likes.” Ex. B at 483:4.
549. Durenleau then said “you guys are gross,”
and that “I could get her before you. I could get her before
you. That’s gross.” Ex. B at 484:10-13.
550. In response to Durenleau’s comment, Mr.
Sharma or Mr. Hankerson stated “if you two fuck, please
record it and send it to us.” Ex. B at 485:6-9.
d. Tasey Leitzell Comments about Collectors
on the Floor
551. Tasey Leitzell (“Leitzell”) would make loud
comments in her office at NRA’s Paxton Street office. ECF
142 at ¶ 161(q); Ex. B at 492:7-493:2.
552. Leitzell would say “[i]f these trifling bitches
would learn how to swallow, we wouldn’t have to pay for
their welfare.” Ex. B at 492:10-12.
553. Leitzell would also make comments about
“I’m so over this job; having to clean the bathroom up after
people; and then bitching about their welfare.” Ex. B at
492:25-493:2.
554. Leitzell’s comments were directed towards
NRA employees who worked on the collection floor. Ex. B
at 493:20-23.
555. Leitzell’s comments were not directed to
Durenleau. Ex. B at 497:11-14.
210a
556. Durenleau did not report these comments.
Ex. B at 494:5-6.
G. The Alleged Verbal Comments Did Not Interfere
with Durenleau’s Work Performance
557. The alleged verbal comments did not prevent Durenleau from performing her job. Ex. B at 497:23498:6.
558. The alleged comments did not prevent Durenleau from being promoted. Ex. B at 498:7-9.
559. The alleged comments did not cause Durenleau to receive negative performance reviews. Ex. B at
498:10-12.
560. The alleged comments did not cause Durenleau to receive disciplinary action for poor performance.
Ex. B at 498:13-15.
H. Alleged Greetings and Shoulder Rubs by Shell
Sharma
561. Sharma would put a single arm around Durenleau’s shoulder or hip. Ex. B at 502:19-503:9, 503:1721.
562. Sharma would do this every day to greet Durenleau. Ex. B at 503:24-504:20.
563. These greetings occurred on the collection
floor, where everyone who was on the floor could see
them. Ex. B at 503:24-504:23.
564. Durenleau and Sharma never hugged. Ex. B
at 505:1-5.
565. Sharma also gave Durenleau shoulder rubs
at her cubicle. Ex. B at 507:12-16.
566. Durenleau never told Mr. Sharma that she
didn’t want to be hugged or touched. Ex. B at 505:19-20.
567. On one occasion, Sharma had his arm
around Durenleau’s shoulder and “brushed down
211a
[Durenleau’s] back and brushed over [Durenleau’s] butt.”
Ex. B at 505:24-506:1.
568. Durenleau’s title at the time was Support
Services and CRT Manager. Ex. B at 509:25-510:13.
569. Durenleau did not report this incident to HR.
Ex. B at 510:20-22.
I. Alleged Non-Sexual “Slap” Incident (November
20, 2020)
570. On Friday, November 20, 2020, Durenleau
was working in NRA’s Camp Hill office. Ex. A at 208:17-22.
571. On that day, Durenleau was on the phone
with Ashley Johnson. Ex. A at 208:23-209:1.
572. Ashley Johnson (“Johnson”) was NRA’s Client Service Manager. Ex. D at “ND 11-A” at 4.
573. Durenleau had previously stopped being
friends with Johnson around St. Patrick’s Day 2019, when
Durenleau went out and drank with Johnson and Kira
West. Ex. A at 209:17-25.
574. When Durenleau and Johnson came back to
work after that outing, “a lot of the he-said/she-said stuff
started happening,” and Durenleau and Johnson stopped
speaking. Ex. A at 210:3-211:5.
575. On November 20, 2020, Johnson was working at NRA’s Paxton Street location, and called Durenleau
complaining about an employee named Myah who reported to Johnson. Ex. A at 211:19-22.
576. Johnson was complaining to Durenleau that
Myah needed to be in her seat. Ex. A at 212:13-14.
577. Durenleau then told Johnson that Myah was
calling her now, and that “I’ll take care of it.” Ex. A at
212:15-16.
578. As Durenleau was telling Johnson this, two
other employees, Jada Wells and Morgan Rothenhoefer,
walked into Durenleau’s office. Ex. A at 212:17-18.
212a
579. Ms. Wells and Ms. Rothenhoefer both reported to Durenleau at this time. Ex. C at “ND 17” at 4; Ex.
B at 412:12-16.
580. Durenleau then switched her phone over to
Myah, who had a question about Sonnet, a computer system that Myah, Jada and Morgan all used in their jobs. Ex.
A at 212:21-23.
581. Durenleau put Myah on speaker phone. Ex.
A at 212:24.
582. Durenleau then saw Sharma walking down
the hallway towards her office and ended the conversation
with Myah. Ex. A at 213:2-6.
583. Sharma then saw Durenleau make a face,
which Durenleau described as “putting my head back, as in
saying like, oh, here we go again, and smiling.” Ex. A at
213:6-7, 214:2-4.
584. Sharma then walked into Durenleau’s office
and said “What?” Ex. A at 214:5-6.
585. Durenleau then said “Oh, Ashley is calling
complaining about Myah again.” Ex. A at 214:7-8.
586. Sharma then told Ms. Wells and Ms. Rothenhoefer to get out of Durenleau’s office, then ushered them
out and shut the door. Ex. A at 214:9-11.
587. Sharma testified that he felt that Durenleau
was “doing something absolutely wrong” by discussing another manager’s issue in front of her staff. Ex. H at 77:2478:2.
588. Sharma testified that he felt that Durenleau’s discussion about Ms. Johnson, in front of her employees, was a gross discourtesy. Ex. H at 85:16-86:8.
589. Sharma testified that he considered Durenleau’s comments about Ms. Johnson to be “very critical of
another manager.” Ex. H at 86:15-16.
590. Sharma then told Durenleau “Don’t do that
again. Don’t do that again.” Ex. A at 214:12-13.
213a
591. Durenleau replied “Do what? They walked
in. They already know.” Ex. A at 214:14-15.
592. Durenleau explained that Ms. Rothenhoefer
used to sit next to Durenleau at NRA’s Paxton Street office
and could hear when people complained about Myah. Ex.
A at 214:15-18.
593. Sharma then told Durenleau that he should
not bring up other employees getting in trouble. Ex. A at
216:17-19.
594. Durenleau then said “Well, I’m not bringing
them up. They heard her on the phone, and they were already aware that people always complain about Myah not
being in her seat.” Ex. A at 216:20-23.
595. When Durenleau was in the middle of saying
something, Sharma hit Durenleau on the right side of her
face and said “I’ll take care of it on Monday.” Ex. A at
216:24-217:2.
596. Sharma then left Durenleau’s office. Ex. A at
218:8-9.
597. Later that afternoon, Durenleau called
NRA’s in-house counsel, Brian Mains. Ex. A at 222:14-15.
598. Mains advised Durenleau to write everything down verbatim while it was fresh in her mind, and to
call an attorney. Ex. A at 223:11-17.
599. Mains told Durenleau to write down everything and send it to him on Monday. Ex. A at 225:23-24.
600. On Friday night, November 20, 2020, Durenleau handwrote a statement of what happened that day.
Ex. A at 226:19-20.
601. On Monday, November 23, 2020, Durenleau
took her handwritten statement with her to the office and
typed up the statement. Ex. A at 226:19-22.
602. Durenleau then shredded the handwritten
statement in the shredder at NRA. Ex. A at 226:23-227:2.
603. Durenleau then gave the typed-up statement to Mains. Ex. A at 227:17-19; Ex. C at “ND 11.”
214a
604. In her statement, Durenleau wrote that
when Shell walked into her office, she “had an annoyed expression on my face because Ashley calls me often to complain about Myah.” Ex. C at “ND 11.”
605. In her statement, Durenleau wrote that she
then put the phone on mute and told Shell that “Ashley is
complaining again.” Ex. C at “ND 11.”
606. In her statement, Durenleau wrote that
Sharma “started saying don’t do that in front of them [Ms.
Wells and Ms. Rothenhoefer] and asked them to leave.” Ex.
C at “ND 11.”
607. In her statement, Durenleau wrote that
while she was explaining that Ms. Wells and Ms. Rothenhoefer had “kind of already heard it” because Ms. Johnson
was on speaker, Mr. Sharma said again “[d]o not do that in
front of them.” Ex. C at “ND 11.”
608. In her statement, Durenleau wrote that
Sharma then slapped Durenleau on her left cheek. Ex. C at
“ND 11.”
609. Durenleau had previously received disciplinary action for talking about employment-related issues
with employees who were not part of NRA management or
Human Resources. Ex. B at 553:23-555:12; Ex. D at “ND
12-A.”
610. On or about May 7, 2018, Durenleau’s thensupervisor, Ashley Chille, issued Durenleau a Correction
Action Report in connection with an incident when Durenleau sent one of her subordinates home. Ex. D at “ND 12A.”
611. The Report noted that Durenleau had spoken to several employees who were not Human Resources
or her supervisor and disclosed what had occurred. Ex. D
at “ND 12-A.”
612. The Report further stated that “[a]ny issues
with a staff member or any employee of the company
should not be discussed with any other subordinates
215a
within the department or other departments.” Ex. D at “ND
12-A.”
613. In her statement regarding the November
20, 2020, incident, Durenleau wrote that after slapping
her, Sharma pointed in her face and stated “I’ll take care of
it on Monday” and left Durenleau’s office. Ex. C at “ND 11.”
614. In her statement, Durenleau did not claim
that Sharma said anything sexual to her during this encounter. Ex. C at “ND 11.”
615. In her statement, Durenleau did not claim
that Sharma touched her in a sexual manner. Ex. C at “ND
11.”
616. In her statement, Durenleau did not claim
that Sharma touched any other body part other than her
left cheek. Ex. C at “ND 11.”
617. In her statement, Durenleau did not claim
that she had been sexually harassed by Sharma. Ex. C at
“ND 11.”
618. In her statement, Durenleau did not claim
that she had been sexually harassed by any employee of
NRA. Ex. C at “ND 11.”
619. There was nothing in Durenleau’s statement
that indicated that the November 20, 2020, incident was
sexual in nature. Ex. A at 237:23-25.
620. Durenleau never said that the November 20,
2020, incident was sexual in nature. Ex. A at 237:25.
621. Durenleau never told co-Durenleau, Jamie
Badaczewski, that the November 20, 2020, incident was
sexual in nature. Ex. F at 482:7-9.
622. Badaczewski testified that she believed that
the slap was “out of like anger or discipline.” Ex. F at 482:910.
623. During her deposition, Morgan Rothenhoefer testified that Durenleau’s written statement about
this incident was accurate to the best of her knowledge. Ex.
L at 195:20-24.
216a
624. Rothenhoefer testified that when she
walked into Durenleau’s office with Jada Wells, she heard
Myah on speakerphone complaining about Ashley Johnson
for about a minute. Ex. L at 191:4-192:9.
625. Rothenhoefer felt that Durenleau could have
hung up the phone sooner. Ex. L at 191:13-14.
626. Rothenhoefer did not witness Sharma making any sexual comments during the portion of the interaction that she witnessed. Ex. L at 195:14-16.
627. Rothenhoefer did not witness any inappropriate sexual conduct towards Durenleau on the day of this
incident. Ex. L at 198:6-8.
628. After receiving Durenleau’s written statement, Mr. Mains told Durenleau that he was going to talk
to Human Resources and Sharma. Ex. A at 228:4-5.
629. Immediately after this incident, Durenleau
began reporting to Lisa Daube. Ex. A at 253:12-13.
630. After the November 20, 2020, incident, Durenleau did not have any other interactions with Sharma
that she felt were inappropriate. Ex. A at 271:2-7.
631. After the November 20, 2020, incident,
Sharma and Durenleau steered clear of each other. Ex. A at
271:6-7.
632. On or about December 29, 2020, Durenleau
asked to meet with Sharma one-on-one. Ex. A at 252:21253:12; Ex. C at “ND 14.”
633. Durenleau wanted to speak to Sharma about
issues she was having with her new supervisor, Lisa
Daube. Ex. A at 253:10-254:2.
634. On that same day, Durenleau e-mailed
Sharma in response to Daube’s December 29, 2020, e-mail
regarding the hours of operation for CRT/Compliance
staff. Ex. V at 1.
635. In her e-mail to Sharma, Durenleau raised
concerns about her start time. Ex. V at 1.
217a
636. In her e-mail to Sharma, Durenleau did not
mention sexual harassment. Ex. V at 1.
637. In her e-mail to Sharma, Durenleau did not
mention sexual comments. Ex. V at 1.
638. Sharma declined Durenleau’s meeting request. Ex. A at 271:8-10; Ex. C at “ND 14.”
639. Durenleau felt that it “kind of sucked” that
Sharma declined her meeting request. Ex. A at 271:11-12.
640. When later interviewed by the Camp Hill Police Department regarding this incident, on February 25,
2021, Durenleau did not report that the November 20,
2020 incident was sexual in nature. Ex. A at 281:1-5; Ex. C
at “ND 17.”
641. Camp Hill Police Officer Nathan Sellers, who
prepared a written Complaint Report memorializing Durenleau’s February 25, 2021, report, testified that there
was nothing in Durenleau’s complaint of a sexual nature.
Ex. M at 116:25-117:4, 147:6-12.
642. Officer Sellers also confirmed that the narrative that he prepared in the Complaint Report was a detailed and complete summary of his February 25, 2021, interview with Durenleau. Ex. M at 208:12-209:8; Ex. C at
“ND 17.”
643. Other than the alleged slap, Officer Sellers
was not aware of any other alleged incidents of wrongdoing at NRA. Ex. M at 208:7-9.
644. Officer Sellers began dating Durenleau on
August 16, 2021. Ex. M at 223:16-17.
J. Durenleau Failed to Complain about Sexual Harassment in Violation of NRA Group Policy
645. As of the date of Durenleau’s hire, the last revision date of NRA’s Employee Handbook was July 2013.
Ex. CC at ¶ 6; Ex. CC-1.
646. NRA’s Employee Handbook had a Sexual
Harassment Statement. Ex. CC-1 at “NRA000966-967.”
218a
647. NRA’s Sexual Harassment Statement in that
version of the handbook was last revised in March of 2013.
Ex. CC-1 at “NRA000966-967.”
648. NRA’s Sexual Harassment Statement in the
July 2013 version of the handbook states that “[i]t is the
policy of NRA that all employees are responsible for ensuring that the workplace is free from sexual harassment. Because of NRA’s strong disapproval of offensive or inappropriate sexual behavior at work, all employees must avoid
any action or conduct which could be viewed as sexual harassment.” Ex. CC-1 at “NRA000967.”
649. NRA’s Sexual Harassment Statement further
states that “[a]ny employee who has a complaint of sexual
harassment at work by anyone, including supervisors, coworkers, or visitors, should clearly inform the harasser
that his/her behavior is offensive or unwelcome and request that the behavior stop. If the behavior continues, the
employee must immediately bring the matter to the attention of his/her supervisor and the Human Resources Department. This will allow the matter to be properly investigated in a prompt and thorough manner.” Ex. CC-1 at
“NRA000967.”
650. In September of 2013, NRA’s Sexual Harassment Policy was revised. Ex. CC at ¶ 7; Ex. CC-2 at 40-41
(“NRA00229-230”).
651. NRA’s revised Sexual Harassment Policy
states that “all employees are responsible for ensuring that
the workplace is free from harassment including sexual
harassment,” and that “[b]ecause of NRA’s strong disapproval of offensive or inappropriate sexual behavior at
work, all employees must avoid any action or conduct
which could be viewed as harassment.” Ex. CC-2 at 40
(“NRA0229”).
652. NRA’s revised Sexual Harassment Policy further states that “[a]n employee who has a complaint of
219a
sexual harassment at work by anyone including supervisors, co-workers or visitors should:
1. If appropriate, clearly inform the individual that his/her behavior is offensive
or unwelcome and request that the behavior stop.
2. The employee must immediately bring
the matter to the attention of his/her
supervisor.
3. If the immediate supervisor is involved
in the harassing activity, the violation
should be reported to the Director of
Human Resources or the Director of
Employee Relations.
4. A complaint may be filed with the EEOC
or the Pennsylvania Human Relations
Commission. Under the Pennsylvania
Human Relations Act (“PHRA”) a complaint must be filed within 180 days of
the alleged act of harm. If filing with the
EEOC a complaint must be filed within
300 days of the alleged act of harm or
within 180 days if filed with PHRC.”
If a supervisor knows of an incident of
harassment they shall inform the
Director of Human Resources or the
Director of Employee Relations.
Ex. CC-2 at 40-41 (“NRA0229-230”).
653. NRA’s revised Sexual Harassment Policy further states that “NRA prohibits retaliation against anyone
for registering a complaint pursuant to this policy, assisting another in making a complaint, or participating in an
investigation under this policy.”
Ex. CC-2 at 40
(“NRA0229”).
220a
654. On September 15, 2014, Durenleau signed
NRA’s Equal Opportunity and Sexual Harassment Statement. Ex. Z at ¶ 26; Ex. Z-5 at “NRA0048.”
655. NRA’s Equal Opportunity and Sexual Harassment Statement states, among other things, that “NRA
encourages any employee who feels that he/she has experienced any form of sexual harassment to report it to the
appropriate manager and/or Human Resources Department as soon as possible so that the matter can be investigated promptly and thoroughly.” Ex. Z at ¶ 27; Ex. Z-5 at
“NRA0048.”
656. In Interrogatory No. 9, Plaintiff asked Durenleau if she had ever made an internal complaint, charge
or report of harassment, discrimination or retaliation (either verbally or in writing) with any employer, including
but not limited to NRA. Ex. P at ¶ 9.
657. Plaintiff further asked Durenleau to identify
the substance of each complaint (including the date each
complaint was made or filed), to whom she complained or
filed each complaint, what actions were taken as a result,
and to attach a copy of all written complaint(s). Ex. P at ¶
9.
658. Durenleau responded by referred to “documents identified in response to Plaintiff’s Request for Production of Documents Directed to Defendants No. 8, including but not limited to complaints filed by Ms. Durenleau on November 20, 2020, [and] February 21, 2021.” Ex.
P at ¶ 9.
659. In Request for Production No. 8, Plaintiff
asked Durenleau to produce “[a]ny and all documents relating to any employment-related grievance or complaint,
submitted internally to Plaintiff or any other employer . . .
from the year 2014 to the present.” Ex. Q at ¶ 8.
660. Durenleau responded by identifying and
producing documents Bates labeled D00072, 74-77, 83-87,
221a
89, 153-157, 159-163, 212, 214-218, 227-230, 236, 238240, 281, 283-287, and 412-415. Ex. Q at ¶ 8; Ex. S.
661. The documents that Durenleau provided include two written complaints that Durenleau made prior
to her resignation from NRA: an October 2020 text message from Durenleau to Shell Sharma and Alonso Hankerson (Ex. S at D000412); and Durenleau’s November 20,
2020 typewritten complaint about the incident with Shell
Sharma and follow-up e-mails regarding same (Ex. S at
D000072, 74-77, 159-163, 212, 227-230, 281, and 413415).
a. October 2020 Complaint about Non-Sexual Workplace “Bullying” and “Cattiness”
From Other Female Employees
662. In her October 2020 text message to Sharma
and Hankerson, Durenleau stated that “[u]nfortunately I
will not be in. I have locked myself out of email so if u [sic]
need me call or text. I am mentally drained from the bullying and being ganged up on by other managers and some
directors. I need a mental health day and I was hoping the
company would be so kind as to grant me this day on them.
I would appreciate it more than you know. Also please
know I mean no disrespect at all by asking this – I appreciate everything you have done for me Shell. Things are just
getting worse with no repercussions on the offenders so
they keep doing it. I just need a day to think about anything
else and clear my had so I can focus and do my job!” Ex. S
at D000412.
663. On October 8, 2020, Sharma responded to
Durenleau’s text message, stating, among other things, that
“we will lodge your complaint and [the] HR Director will
investigate this matter along with Lisa Daube.” Ex. S at
D000412.
664. Durenleau’s text message did not make any
reference to sexual harassment or sexual comments. Ex. S
at D000412.
222a
665. On the previous day, October 7, 2020, Durenleau’s subordinate, Morgan Rothenhoefer, had made a
complaint to NRA’s Director of HR about “drama in the
building” including “other managers bad mouthing [Durenleau], and other people on the floor saying negative
things.” Ex. L at “Rothenhoefer 17.”
666. Rothenhoefer’s complaint “had nothing to
do with sexual harassment. It was just women being catty
in the workplace.” Ex. L at 144:10-12.
667. Rothenhoefer described the work environment as feeling “like a High School locker room.” Ex. L at
“Rothenhoefer 17.”
668. Around that time, other women in the workplace were making comments about Durenleau being able
to afford to pay money out-of-pocket for health insurance
because she lived with her parents. Ex. L at 155:20-156:1.
669. As a result of these complaints, Sharma directed that an internal investigation take place. Ex. B at
495:21-24.
670. As a result of these complaints, in October of
2020, Durenleau and her team were moved to NRA’s Camp
Hill office on a full-time basis. Ex. B at 496:12-18; Ex. L at
151:8-153:10.
671. This move alleviated the catty comments.
Ex. L at 157:7-12.
672. The employees who complained about these
catty comments were not fired. Ex. B at 496:17-23.
b. November 2020 Statement about NonSexual “Slap” Incident
673. Neither Durenleau’s November 20, 2020,
typewritten statement nor the e-mails regarding same
make any reference to sexual harassment or sexual comments. Ex. S at D000072, 74-77, 159-163, 212, 227-230,
281, and 413-415.
674. In her e-mail to Brian Mains attaching her
typewritten statement about the November 20, 2020,
223a
incident, Durenleau stated “I want this on file just in case I
lose my job, get demoted or have my pay reduced.” Ex. S at
D000077.
675. In response, Mains asked Durenleau
whether she wanted the statement in her employee file, or
whether Durenleau was just sending the statement directly to him “just to ensure that it was in writing?” Ex. S
at D000076.
676. Durenleau responded that she was “[s]ending to you JUST so it is in writing in case anything happens.”
Ex. S at D000075.
677. In her statement and her e-mails, Durenleau
did not ask for the slap incident to be investigated. Ex. S at
D000072, D000074-77.
678. In her statement and her e-mails, Durenleau
did not ask that NRA take any action in response to this alleged incident. Ex. S at D000072, D000074-77.
c. Other Documents Provided by Durenleau
not Including any Complaints of Sexual
Harassment
679. Along with her responses to Request for
Production No. 8, Durenleau also included two identical
copies of her February 21, 2021, resignation letter. Ex. S at
D000089, 236.
680. Neither copy of this resignation letter includes any reference to sex or sexual comments. Ex. S at
D000089, 236.
681. Along with her responses to Request for
Production No. 8, Durenleau also included several copies
of a series of e-mails between Durenleau, Steve Kusic, and
several others, dated January 6, 2021. Ex. S at D00008387, 153-157, 214-218, 283-287.
682. These e-mails do not contain any reference
to sexual harassment or sexual comments. Ex. S at
D000083-87, 153-157, 214-218, 283-287.
224a
683. The only document in this packet of documents that includes any reference to sex or sexual comments was the Demand and Notice of Claims from Durenleau’s attorney to NRA’s corporate counsel, dated February 22, 2021. Ex. S at D000238-240.
d. Durenleau did not Mention Sexual
Harassment to her Therapist Until After
She
Signed
a
Medical
Records
Authorization for this Case
684. Durenleau did not see a therapist during her
employment with NRA. Ex. B at 601:9-14.
685. Durenleau did not start seeing a therapist
until after she retained her attorney in this case. Ex. B at
601:6-8.
686. On September 17, 2021, Durenleau had her
first session with a therapist with Cerebral. Ex. B at
607:20-24; Ex. D at “ND 17-A.”3
687. At that time, Durenleau reported an instance
of assault at work by a male boss. Ex. B at 606:17-19; Ex.
D at “NRA 17-A” at 2 (“NRA00508”).
688. Durenleau was referring to the alleged slap
by Shell Sharma. Ex. B at 607:1-12.
689. Durenleau did not mention sexual harassment during the initial session on September 17, 2021. Ex.
D at “NRA 17-A.”
690. On December 8, 2021, Durenleau had another session with her Cerebral therapist. Ex. B at 608:3613:14; Ex. D at “NRA 18-A.”
Pursuant to the Stipulated Confidentiality Order in place in this case
(ECF 45-1), Plaintiff has filed a motion to submit the exhibits
pertaining to Durenleau’s mental health treatment (ND 17-A, ND 18-A
and ND-19A) under seal. Furthermore, Plaintiff will not describe the
contents of these exhibits except to the extent they were described
during Durenleau’s deposition, which was not designated as
confidential.
3
225a
691. Durenleau did not mention sexual harassment during this session. Ex. D at “NRA 18-A.”
692. On January 13, 2022, Durenleau signed a release for hospital and medical records authorizing Plaintiff’s counsel to obtain her medical records with Cerebral.
Ex. B at 619:8-19; Ex. D at “NRA 20-A.”
693. On January 19, 2022, Durenleau had another
session with her Cerebral therapist. Ex. B at 616:2-4; Ex. D
at “NRA 19-A.”
694. At that time, Durenleau reported that she
was physically abused and sexually harassed by her boss
and is now in the middle of a lawsuit. Ex. B at 615:1-4; Ex.
D at “NRA 19-A” at 2 (“NRA00498”).
695. Durenleau also reported that she was “constantly bullied at work.” Ex. B at 620:11-15; Ex. D at “NRA
19-A” at 2 (“NRA00498”).
696. Durenleau was referring to alleged bullying
from Tasey Leitzell, Anita Schaar, Kira West, and Ashley
Johnson. Ex. B at 621:8-12.
VIII.
FACTS PERTINENT TO DURENLEAU’S RETALIATION CLAIMS (COUNTS THREE AND
SIX)
A. Durenleau was Not Demoted
697. On January 8, 2021, Durenleau e-mailed Lisa
Daube to ask whether compliance was “being taken away
from me and given to someone else.” Ex. AA-3.
698. Daube replied “no.” Ex. AA-3.
699. At no point in time did Daube demote Durenleau or change her job title or base salary. Ex. AA at ¶
28.
700. Durenleau’s base salary was never reduced
at NRA. Ex. B at 527:4-6.
701. Durenleau’s base salary, at the time of her
resignation, was $50,000. Ex. A at 52:2-3.
226a
702. At the time of her resignation, Durenleau’s
job title was still “Senior Manager of Compliance Services.”
Ex. C at “ND 15”; Ex. AA at ¶ 28.
703. Durenleau did not consider being assigned
Daube as her new supervisor to be retaliation. Ex. B at
517:10-13.
B. Durenleau Was Selected to Lead an NRA
Committee for Future Leaders (December
2020, February 2021)
704. The Intelligence Interactions Group are
three committees comprising of the next generation of
leaders at NRA. Ex. H at 144:21-25; Ex. CC at ¶ 22.
705. Approximately 12 to 14 NRA employees
were selected to be part of these committees. Ex. H at
145:8-11.
706. Three or four employees were selected to be
committee coordinators. Ex. H at 145:12-15.
707. In December 2020, Shell Sharma appointed
Durenleau to be one of those committee coordinators. Ex.
H at 145:16-18; Ex. CC at ¶ 23.
708. On February 10, 2021, Durenleau led a
meeting of one of these committees. Ex. H at 145:6-7; Ex.
CC at ¶ 24; Ex. CC-3.
709. On February 10, 2021, Durenleau sent an email to the other members of her committee summarizing
the topics that were discussed. Ex. CC at ¶ 25; Ex. CC-3.
710. In that e-mail, Ms. Durenleau stated that the
next meeting would be on March 10, 2021, and asked the
team to “[p]lease think of some other ideas for us to discuss
.” Ex. CC-3.
C. Durenleau Received a Discretionary Holiday
Bonus in December 2020
711. In December 2020, NRA Group provided Durenleau with a discretionary year-end bonus in the total
amount of $650. Ex. CC at ¶ 18.
227a
712. On December 11, 2020, Ms. Durenleau received a “Holiday” bonus of $400 in her paycheck, which
not all employees received, Ex. CC at ¶ 19.
713. In addition, Ms. Durenleau received a $250
Visa gift card, which not all employees received. Ex. CC at
¶ 20.
D. Durenleau Was Scheduled to Attend Blueprint Training
714. As part of her compliance role, Durenleau
was responsible for utilizing ACA International’s Professional Practices Management System (“PPMS”) to manage
compliance for NRA. Ex. AA at ¶ 53.
715. In October of 2020, ACA International
(“ACA”) changed the name of PPMS to the Blueprint Quality Management System. Ex. AA at ¶ 54.
716. ACA offers a certification for Blueprint,
which individual employees of collections agencies and
other firms in the accounts receivable management industry can receive after attending training. Ex. AA at ¶ 55; Ex.
AA-6.
717. During her employment with NRA, Durenleau had used PPMS, but did not have a certification for
PPMS or Blueprint. Ex. AA at ¶ 56.
718. During the time that Daube supervised Durenleau, between November 2020 and February 2021, Durenleau told Daube that she was interested in receiving a
Blueprint certification. Ex. AA at ¶ 57.
719. The Blueprint certification is highly regarded in the debt collection industry. Ex. AA at ¶ 58.
720. Because NRA uses the Blueprint system, and
Durenleau was in a compliance role, obtaining a Blueprint
certification would have been a factor in future pay raise
decisions for Durenleau at NRA. Ex. AA at ¶ 59.
721. In addition, because the Blueprint system is
used by NRA’s competitors and other firms in the accounts
receivable management industry, obtaining a Blueprint
228a
certification would have made Durenleau more marketable to other potential employers in the industry if she left
NRA. Ex. AA at ¶ 60.
722. The first Blueprint training for 2021 was
scheduled for February 16 through 18, 2021. Ex. AA at ¶
61; Ex. AA-7.
723. After attending this multi-day training and
passing the benchmarks contained in the training sessions,
attendees would receive a Blueprint certification. Ex. AA at
¶ 62.
724. On February 10, 2021, Kusic, Sharma and
Daube jointly offered Durenleau the opportunity to become Blueprint certified by attending training through
ACA. Ex. AA at ¶ 63; Ex. AA-8.
725. NRA offered Durenleau to receive this training at NRA’s expense, at the cost of $299, and with no cost
to her. Ex. AA at ¶ 64.
726. Had Durenleau attended Blueprint training
and passed the benchmarks, she would have received a
Blueprint certification in her own name, which she could
then use in her role with NRA or for another company in
the debt collection or accounts receivable management industries. Ex. AA at ¶ 65.
727. Durenleau ultimately did not attend the February 2021 Blueprint training because she was scheduled
to be out on paid time off (PTO) during the time that the
training was being offered. Ex. AA at ¶ 66.
728. Daube previously approved Durenleau’s
PTO request before Jill Kusic invited her to the February
2021 Blueprint training. Ex. AA at ¶ 67.
729. Because ACA International was offering additional Blueprint trainings later in 2021, Daube did not
feel that it was not necessary for Durenleau to interrupt
her prescheduled PTO to attend the February 2021 training session. Ex. AA at ¶ 68.
229a
730. Therefore, on February 11, 2021, Daube advised Durenleau that she could take her vacation time as
planned. Ex. AA at ¶ 69.
731. At that time, Daube was not aware that Durenleau was planning to resign from NRA. Ex. AA at ¶ 70.
E. Durenleau’s “Parking Space” Was Not Taken
Away from Her
732. NRA Group’s Camp Hill office is inside the
Camp Hill Mall. Ex. A at 229:17-19.
733. There are no parking spaces in the Camp Hill
Mall parking lot designated for NRA with signage. Ex. A at
229:24-230:15.
734. Durenleau was never given a specific parking space in the Camp Hill Mall parking lot. Ex. A at 230:1620.
735. Prior to January of 2021, Durenleau typically parked up front beside where Sharma and Kusic
parked. Ex. A at 230:20-22.
736. On January 15, 2021, Lisa Daube e-mailed
twenty-two (22) NRA Group employees who worked at the
Camp Hill office and advised them that “[t]he parking spots
near the entrance of the building are reserved for visitor
and handicap parking. If you parked your car in these
spots, please move your car to the regular lot.” Ex. A at
232:12-233:12; Ex. C at “ND 13.”
F. Durenleau Was Not Damaged by Being Required to Work During NRA’s Standard
Hours of Operations (December 2020)
737. NRA’s working hours, as stated in its Employee Handbook, are 8:00 a.m. to 8:30 p.m. Monday
through Thursday, 8:00 a.m. to 5:00 p.m. on Fridays, and
8:00 a.m. to 12:30 p.m. on Saturdays. Ex. CC-2 at
“NRA0237-0238.”
230a
738. On December 29, 2020, Lisa Daube e-mailed
Durenleau reminding her that per the hours of operation
for CRT/Compliance staff members, no employees should
start prior to 8am. Ex. V at “D000418.”
739. Daube had previously e-mailed Durenleau
about this issue on December 9, 2020, in which she indicated that “the hours of operation for CRT/Compliance are
8-4:30 as we feel this best suits the needs of NRA Group.”
Ex. V at “D00419.”
740. As of December 7, 2020, Durenleau’s e-mail
signature stated that NRA’s hours of operation began at
8:00 a.m., Monday through Saturday. Ex. U at “D000401.”
741. Previously, Durenleau arrived at work at
7:30 a.m. Ex. B at 520:16-22.
742. During her deposition, Durenleau was asked
three times who told her that she could arrive before 8:00
a.m. but was unable to provide a name. Ex. B at 520:20521:4.
743. Durenleau did not suffer any harm or damage due to no longer being permitted to arrive at work
prior to 8 a.m. Ex. B at 521:5-15.
744. In response to Daube’s December 29, 2020,
reminder, Durenleau e-mailed Shell Sharma indicating
that “this is what I wanted to discuss plus other issues a lot
of staff are having… I thought I was a manager but I don’t
feel like I am- everything I do or approve is told its wrong
or it is an issue and its [sic] what I have done before.” Ex.
V at “D000418.”
G. Durenleau’s Laptop Was Not Taken Away
from Her
745. Durenleau was never issued a laptop during
her employment with NRA. Ex. B at 525:6-19.
746. Durenleau is not claiming that she was not
given a laptop because she reported the alleged slap. Ex. B
at 525:11-13.
231a
H. Durenleau Was Not Forced to Work During
COVID Leave
747. Durenleau was provided with paid COVID
leave for her period of absence in January of 2021. Ex. B at
529:14-18
748. No one specifically told Durenleau that if she
did not work during her leave, she would be fired. Ex. B at
531:9-11.
749. After her COVID-19 leave ended on January
14, 2021, Durenleau returned to work at NRA. Ex. B at
403:16-17.
I. Durenleau Was Appropriately Disciplined
for Fraudulent Account Transfers (February
2, 2021)
750. After Anita Schaar completed her audit of
Durenleau’s account transfers in January of 2021, she provided a report to Lisa Daube. Ex. J at 43:21-23.
751. Daube looked at Schaar’s report, spot
checked it, and made sure that she understood it and
agreed with it. Ex. J at 43:24-44:2.
752. Based on her review of Schaar’s report,
Daube concluded that accounts were moved inappropriately to the compliance work group, and that payments
were reposted inappropriately to the compliance work
group. Ex. J at 44:3-7.
753. Daube concluded that every account in
Schaar’s report was improperly moved. Ex. J at 44:14-22.
754. Daube stated that she considered Durenleau’s actions to be theft and fraud. Ex. J at 46:8-10.
755. Daube testified that, in her opinion, on a
scale of one to ten, Durenleau’s conduct was a ten. Ex. J at
46:14-22.
232a
756. After reviewing Schaar’s report, Daube
wrote up a corrective action for Durenleau. Ex. J at 44:2345:1, 45:12-24; Ex. C at “ND 9;” Ex. HH at 45:15-25.
757. The corrective action was approved by human resources and NRA’s corporate counsel. Ex. J at
44:23-45:1, 45:12-24, 47:2-4; Ex. C at “ND 9.”
758. After the corrective action was approved,
Ms. Daube presented it to Durenleau on February 2, 2021.
Ex. J at 46:23-47:1; Ex. A at 155:21-156:2; Ex. C at “ND 9.”
759. Durenleau signed the corrective action. Ex. J
at 46:23-47:1; Ex. A at 155:14-156:2, 170:7-9; Ex. C at “ND
9”; Ex. HH at 45:15-25.
760. Durenleau never expressed her disagreement with this corrective action in writing. Ex. A at 170:79.
761. Durenleau was not terminated as a result of
the corrective action. Ex. A at 170:22-171:1; Ex. K at 49:350:6.
762. Daube was not aware of any NRA employees
making complaints of sexual harassment, discrimination
or retaliation. Ex. J at 93:4-9.
763. Daube was not aware of any employee complaints against Shell Sharma for sexual harassment, discrimination or retaliation. Ex. J at 93:11-16.
764. Daube was not aware of any employee complaints against Steve Kusic for sexual harassment, discrimination or retaliation. Ex. J at 93:18-23.
765. Durenleau never made any complaints to
Schaar about Sharma or anyone else in NRA management.
Ex. K at 107:11-13.
766. Schaar never saw any physical contact between Sharma and Durenleau. Ex. K at 99:12-14.
767. Schaar had no knowledge of Sharma touching or striking Durenleau in any way. Ex. K at 128:20-22.
233a
768. Steve Kusic did not participate in the internal investigation that led to Durenleau’s written warning
for moving accounts. Ex. N at 117:11-118:10.
769. Kusic did not have any role in deciding what
type of discipline Durenleau would receive. Ex. N at
125:11-17.
770. Shell Sharma did not participate in the internal investigation that led to Durenleau’s written warning
for moving accounts. Ex. CC at ¶¶ 11-16.
771. Sharma did not have any role in deciding
what type of discipline Durenleau would receive. Ex. CC at
¶¶ 11-16.
772. NRA later determined that Durenleau had
been wrongfully paid $944 in commissions as a result of
these transfers. Ex. I at 387:10-17.
J. Durenleau’s Access to the E-Team E-mail Inbox Was Appropriately Removed
773. NRA developed the “E-team” to respond to
e-mails and text messages from consumers. Ex. A at 46:2125, 114:5-11.
774. NRA hired several individuals specifically to
work for the E-team. Ex. A at 8-14.
775. Sharma and Kusic had previously asked Durenleau to do training for the E-team. Ex. A at 48:11-13.
776. Durenleau’s access to the E-team e-mail inbox was removed when she received the Final Warning on
February 2, 2021. Ex. B at 529:19-23; Ex. C at “ND-9.”
777. Durenleau was unable to identify any evidence that she was removed from the E-team because she
reported the slap incident with Mr. Sharma. Ex. B at 530:27.
IX.
DURENLEAU VOLUNTARILY RESIGNED AND
WAS NOT CONSTRUCTIVELY DISCHARGED
234a
778. Beginning in 2019, Durenleau had been
looking for another job. Ex. A at 179:10-12.
779. On Wednesday, February 17, 2021, Durenleau signed an offer letter for employment with West
Shore Home, as a Permitting and Licensing Manager. Ex.
BB-1.
780. At 7:49 a.m.4 on Wednesday, February 17,
2021, Durenleau forwarded her offer letter (Subject: Fwd)
from her personal Gmail account to her NRA e-mail account. Ex. EE at 34 (“NRA002739”).
781. Attached to this e-mail was a file titled “Durenleau, Nicole – Offer Letter.pdf.”
Ex. EE at 35
(“NRA002740”).
782. At 7:54 a.m. on Wednesday, February 17,
2021, Durenleau e-mailed her offer letter from her NRA email account to her personal Gmail account (Subject: Offer
Letter). Ex. EE at 33 (“NRA002738”).
783. Attached to this e-mail was a file titled
“Scans from a Xerox Multifunction Printer.pdf.” Ex. EE at
34 (“NRA002739”).
784. At 10:34 a.m. on Wednesday, February 17,
2021, Durenleau created a document on her NRA computer titled “Resignation Letter.docx.” Ex. EE at 32-33
(“NRA002737-2738”).
785. At 10:39 a.m. on Wednesday, February 17,
2021, the document titled “Resignation Letter.docx” was
last modified by Durenleau. Ex. EE at 33 (“NRA002738”).
786. At 10:39 a.m. on Wednesday, February 17,
2021, Durenleau e-mailed her resignation letter from her
NRA e-mail account to her personal Gmail account. Ex. EE
at 30-31 (“NRA002735-2736”).
787. Attached to this e-mail was the file titled
“Resignation Letter.docx.” Ex. EE at 31 (“NRA002736”).
4
All times listed above are EST (UTC -5:00).
235a
788. Plaintiff’s base salary at West Shore Home
was $75,000. Ex. BB-1; Ex. P at page 8, ¶ 7.
789. Durenleau was out of the office on Thursday,
February 18, 2021. Ex. AA-8.
790. Durenleau was out of the office on Friday,
February 19, 2021. Ex. AA-8.
791. On Sunday, February 21, 2021, Durenleau
submitted her resignation letter to NRA Group. Ex. C at
“ND 15.”
792. In her resignation letter, Durenleau stated
that she was resigning from the position of Senior Manager
of Compliance Services, effective Sunday February 21,
2021. Ex. C at “ND 15.”
793. Durenleau also stated that she had been
“targeted and harassed at NRA Group, LLC for some time
now.” Ex. C at “ND 15.”
794. In her resignation letter, Durenleau did not
allege that she was subjected to sexual harassment. Ex. C
at “ND 15.”
795. Durenleau’s resignation letter does not
mention any sexual comments made by any employee or
officer of NRA. Ex. C at “ND 15.”
796. Durenleau’s resignation letter does not
mention any sexual advances made by any employee or officer of NRA. Ex. C at “ND 15.”
797. The only specific allegation described in Durenleau’s resignation letter was the alleged slap from Shell
Sharma from November of 2020. Ex. C at “ND 15.”
X.
LISA DAUBE DISCOVERS THE SPREADSHEET,
PROMPTING NRA TO TAKE APPROPRIATE
LEGAL ACTION
798. After Ms. Durenleau resigned from NRA on
February 21, 2021, Lisa Daube took over handling the state
collections licensing issues that Durenleau was
236a
responsible for during her employment. Ex. AA at ¶ 38; Ex.
J at 59:14-17.
799. As part of that process, Daube requested access to Durenleau’s NRA Group e-mail account. Ex. J at
59:18-19; Ex. X at “GARTLAND-PROD0001540.”
800. On February 24, 2021, Daube was reviewing
Durenleau’s NRA e-mail inbox to determine the status of
NRA and EBO’s various state collection licenses, and to follow up on any issues with the appropriate state collections
licensing boards and agencies. Ex. AA at ¶ 39; Ex. J at 59:2060:9; 138:10-15.
801. At approximately noon on February 24,
2021, Daube discovered that an e-mail had been sent from
Durenleau’s
NRA
address
(ndurenleau@nragroup.com) to her personal Gmail address
(ndurenleau@gmail.com) on January 7, 2021. Ex. AA at ¶
40.
802. Attached to that e-mail was the Password
Spreadsheet containing usernames, passwords and other
credentials that would allow anyone with an internet connection to access various private web portals used by NRA
during its collections business. Ex. AA at ¶ 41; Ex. X at
“GARTLAND-PROD0001540.”
803. Daube did not ask Durenleau to perform any
work or access any NRA computer systems or other computer systems during her leave of absence. Ex. AA at ¶ 43.
804. Daube did not give Durenleau permission to
create an Excel spreadsheet or any other document listing
usernames and passwords. Ex. AA at ¶ 44.
805. Prior to February 24, 2021, Daube was not
aware that the Spreadsheet had been e-mailed to Durenleau’s personal Gmail address, nor had Daube given her
permission to e-mail any NRA information to her personal
Gmail address. Ex. AA at ¶ 45.
237a
806. On February 26, 2021, Daube reported this
e-mail to the Swatara Township Police Department. Ex. J
at 66:2-68:11; Ex. X at “GARTLAND-PROD0001540.”
807. At the time she reported this matter to the
Swatara Township Police Department, Daube did not
know that Durenleau had raised claims of sexual harassment, discrimination and retaliation against NRA. Ex. J at
80:25-81:20.
808. At the time she reported this matter to the
Swatara Township Police Department, Daube was not
aware that there was a potential criminal matter against
Shell Sharma. Ex. J at 81:21-24.
809. After Daube discovered the e-mail with the
Password Spreadsheet, she called Shell Sharma. Ex. H at
166:25-167:1.
810. Daube told Sharma that “[w]e have a major
problem here.” Ex. H at 167:2-3.
811. Daube told Sharma that Durenleau “sent a
ton of information to her private Gmail address.” Ex. H at
167:7-8.
812. After learning about this, Sharma informed
Steve Kusic, as well as NRA’s director of IT, NRA’s law firm
at the time, McNees Wallace & Nurick LLC, NRA’s network
and systems design consultant, Appalachia Technologies,
LLC (“Appalachia”), and informed a forensic organization.
Ex. H at 167:9-15.
813. Shell Sharma testified that the disclosure of
the logins contained in the Password Spreadsheet could
compromise 40 million accounts contained in the client
systems in question. Ex. H at 168:23-25.
814. Sharma considered the e-mailing of the
Password Spreadsheet to be “an unacceptable act beyond
comprehension.” Ex. H at 168:25.
815. When Mr. Kusic learned about documents
being e-mailed to Durenleau’s Gmail account, he was
“shocked” and “horrified.” Ex. N at 142:4-23.
238a
816. After Mr. Kusic found out what Durenleau
sent, he was “even more horrified” because the Password
Spreadsheet “had not only passwords to the computer systems that … Nicole had access to, it also had passwords to
our clients’ computer systems, and it had all my and my
wife’s personal information and I believe a lot of corporate
information on it.” Ex. N at 142:24-7.
817. In response to learning about the e-mailing
of the Password Spreadsheet, NRA spoke to its legal counsel, increased computer security, and hired outside investigators to conduct a forensic investigation. Ex. N at
143:12-25.
818. On February 26, 2021, NRA engaged Information Network Associates, Inc. (“INA”) to conduct a forensic analysis pertaining to possible exfiltration of company data by Durenleau. Ex. EE at 4 (“NRA002709”); Ex. H
at 175:10-17.
819. NRA incurred costs to INA for forensic investigation in the amount of $12,406. Ex. FF at 7-8
(“NRA002755-2756”).
820. During expert discovery in this matter,
Plaintiff produced a Digital Forensics Unit Final Report,
dated July 12, 2022, authored by Joseph W. Henderson of
INA. Ex. EE.
821. Prior to the November 4, 2022, deadline for
Defendants to submit expert reports, Defendant did not
submit any forensic expert report to challenge or rebut any
of the conclusions contained in INA’s report. ECF 125; ECF
149 at fn. 36, 76.
822. Within a week of discovering the Password
Spreadsheet, NRA retained Appalachia to work on security
with NRA’s system. Ex. N at 143:11-21.
823. In response to Defendants e-mailing of the
Password spreadsheet, NRA incurred costs to Appalachia
for Security Information and Event Management (“SIEM”).
Ex. I at 324:20-24; 339:14-20.
239a
824. NRA’s costs to Appalachia for SIEM were
$106,730. Ex. I at 337:9-11; Ex. FF at 7-8 (“NRA0027552756”).
825. NRA also incurred costs to Lares, LLC
(“Lares”) for penetration testing in the amount of $13,164.
Ex. FF at 7-8 (“NRA002755-2756”).
826. NRA also incurred costs to A-Lign Compliance and Security, Inc. (“A-Lign”) for an SOC 2 Type II Report in the amount of $14,600. Ex. FF at 7-8 (“NRA0027552756”).
827. As of September 30, 2022, NRA had incurred
a total of $146,900 in third-party consultant costs to Appalachia, INA, Lares and A-Lign. Ex. FF at 7 (“NRA002755”).
828. On May 10, 2021, NRA Group retained Paige
Macdonald-Matthes, Esq. and Obermayer Rebmann Maxwell & Hippel LLP to represent it in this litigation. Ex. DD
at ¶ 2.
PART IV
UNDISPUTED
FACTS
SUPPORTING
SUMMARY
JUDGMENT ON DEFENDANT
BADACZEWSKI’S
COUNTERCLAIMS
XI.
FACTS PERTINENT TO BADACZEWSKI’S SEXUAL HARASSMENT AND QUID PRO QUO
COUNTERCLAIMS (COUNTS ONE, TWO, FOUR
AND FIVE)
A. Badaczewki’s Sexual Harassment Allegations
829. Badaczewski testified that beginning immediately after her hire in September of 2020, she was sexually harassed by her supervisor Steve Kusic “all day, every
day.” Ex. E at 85:10-16; 133:23-134:1; 176:15; 214:17-19;
215:17-18; 239:14; 240:16.
240a
830. Badaczewski testified that she was subjected to over 120 incidents of sexual harassment during
her employment at NRA. Ex. E at 239:21-25.
831. Badaczewski testified that Kusic “pursued
[her] sexually.” ECF No. 143 at 33, 38.
832. Badaczewski stated she “rebuffed Mr.
Kusic’s advances and was retaliated against for same.” ECF
No. 143 at 33, 38.
833. Badaczewski testified that on one occasion,
she told Kusic that one of the male construction workers
who were working in the office looked good, and he responded that guys liked her because she had “big boobs”
and was “blonde.” Ex. E at 242:5-245:18.
834. Badaczewski testified that Kusic referred to
her as a “blonde” and questioned her intelligence “every
day,” 120 times or “[m]aybe even more.” Ex E at 260:1-24.
835. Badaczewski testified that she “talked about
[her] outside life constantly – all the time.” Ex. E at 305:1219.
836. Badaczewski testified that when she told
Kusic about dating guys, he would respond by making
comments about her sex life. Ex E at 293:23- 300:18;
305:13-14.
837. Badaczewski testified that she told Kusic
that she was dating someone who was in the army, and
that Kusic responded by saying that she needed to date a
“conservative man.” Ex. F at 352:1-14.
838. Badaczewski admitted that she never told
Kusic that his comments were inappropriate. Ex. E at
301:16-302:13; 305:12-306:2.
839. Badaczewski admitted that she would “humor” Kusic by making jokes and “talk[ing] with him in
more detail.” Ex. E at 301:16-23.
840. When interviewed Detective Gartland on
March 25, 2021, Badaczewski admitted that Steve Kusic
241a
“never touched [her], he never made advances at [her].”
Ex. Y at 18:2-9.
B. Badaczewski Failed to Promptly Complain
about Sexual Harassment, in Violation of NRA
Group Policy
841. The Employee Handbook in effect during
Badaczewski’s employment contains a Sexual Harassment
Policy. Ex. CC at ¶ 8; Ex. CC-2 at 40-41 (“NRA0229NRA0230”); Ex. E at 95:7-11, 102:10-18; Ex. G at “JB 6.”
842. On September 14, 2020, Badaczewski
signed NRA’s Equal Opportunity and Sexual Harassment
Statement. Ex. Z at ¶ 26; Ex. Z-5 at “NRA0441.”
843. NRA’s Equal Opportunity and Sexual Harassment Statement states, among other things, that “NRA
encourages any employee who feels that he/she has experienced any form of sexual harassment to report it to the
appropriate manager and/or Human Resources Department as soon as possible so that the matter can be investigated promptly and thoroughly.” Ex. Z at ¶ 27; Ex. Z-5 at
“NRA0441.”
844. Badaczewski testified that she “repressed”
many memories from NRA. Ex. E at 99:16-18.
845. Badaczewski admitted that she had a problem with alcohol while she was employed by NRA. Ex. E at
23:15-24:7; Ex. F at 372:12-17.
846. Badaczewski was convicted of DUI in Virginia. Ex. E at 19:7-21:24; Ex. G at “JB 2.”
847. Badaczewski was convicted of public intoxication in Pennsylvania. Ex. E at 19:7-21:24.
848. Badaczewski testified that she had only
been sober for approximately six months as of her March
2022 deposition. Ex. E at 23:23-24:1.
849. Badaczewski admitted that she falsely listed
her therapist as a professional reference on her NRA job
application. Ex. E at 92:11-22.
242a
850. Badaczewski admitted that she falsely
stated that she had graduated from college on her NRA job
application. Ex. E at 92:23-93:2.
851. Badaczewski admitted that she falsely misrepresented the reasons why she had left two prior jobs
that she had been fired from on her NRA job application.
Ex. E at 58:17-19; 74:1-16; 82:22-83:25; Ex. G at “JB 4.”
852. Badaczewski testified that the alleged sexual
harassment from Kusic began immediately upon her hire.
Ex. E at 214:17-19.
853. Badaczewski went to Human Resources
about the alleged harassment from Kusic near the end of
her employment. Ex. E at 186:7-9.
854. Badaczewski spoke to Plaintiff’s Director of
HR, Alonzo Hankerson, “shortly before [she] got terminated.” Ex. E at 217:17-20.
855. Badaczewski went to HR in the Spring of
2021. Ex. E at 254:2-5.
856. Badaczewski reported the alleged sexual
harassment from Kusic when she went to Human Resources about Kusic “belittling” her. Ex. E at 254:8-12.
857. Badaczewski was not planning to disclose
the alleged sexual harassment on the day she complained.
Ex. E at 229:24-25; 254:21-22.
858. When Badaczewski went to Mr. Hankerson,
it “wasn’t originally for harassment. It was because Steve
[Kusic] was belittling [Badaczewski] at [her] job and making [her] feel very inadequate.” Ex. E at 229:19-22.
859. Badaczewski’s meeting with Mr. Hankerson
was prompted by an e-mail Badaczewski had sent. Ex. E at
229:22-23.
860. On January 28, 2021, Badaczewski sent an
email to Tasey Leitzell alleging that she was not properly
trained and that Kusic had made “rude condescending
comments towards [her] about [her] intelligence, work
243a
ethic, and ability to grasp something.” Ex. G at “JB 3A” at 23.
861. Badaczewki admitted that the January 28,
2021, e-mail was her first attempt to “speak to someone to
get help.” Ex. F at 402:17-18.
862. Badaczewski’s e-mail did not mention anything about sexual harassment. Ex. G at “JB 3A” at 2-3.
863. On January 28, 2021, Ms. Leitzell forwarded
Badaczewski’s e-mail to Mr. Hankerson. Ex. G at “JB 3A” at
1.
864. In response to that e-mail, Badaczewski was
called into a meeting with Mr. Hankerson and Lisa Daube.
Ex. E at 229:23, 253:17-254:9.
865. Badaczewski testified that she started off
the meeting by telling Hankerson and Lisa Daube about the
alleged “belittling” of her work performance. Ex. E at
253:17-254:12.
866. During this meeting, Badaczewski “broke
down” and told Hankerson and Daube that Kusic “constantly talks about me being blonde and having big boobs.”
Ex. E at 254:8-12.
867. On March 25, 2021, when Detective Gartland asked Badaczewski whether she filed a complaint
against Kusic, Badaczewski replied “I went to HR about it.
I never went to anyone else.” Ex. Y at 17:23-25.
868. Badaczewski testified that on one occasion,
Kusic told her that a document that she had drafted was
“unsalvageable.” Ex. F at 404:8-14.
869. Kusic testified that during Badaczewski’s
employment, he believed that she had a bachelor’s degree
for fashion marketing, and therefore wanted her to create
literature and social media postings for NRA. Ex. N at
223:10-223:5.
870. Kusic testified that Badaczewski’s “quality of
work just never came about as far as literature development. Her creative writing skills, her creative skills, critical
244a
thinking skills just were lacking significantly. I mean, they
just weren’t there.” Ex. N at 226:16-20.
871. At 9:43pm on the Wednesday night before
Thanksgiving 2020, Badaczewski texted Kusic the following messages: “Hey” “My father needs employment” “He
has an electrical engineer” “I hope your [sic] having a good
time tonight” and “Forget this !!” Ex. N at “SK12”; Ex. N at
226:21-227:13.
872. On the Friday after Thanksgiving, Kusic emailed Badaczewski, stating “I have no idea why you
would send me this text, except for being a bad drunk” and
“[i]f this happens again you will be terminated. Get your
drinking under control.” Ex. N at “SK13.”
873. Kusic was aware that Badaczewski had a
drinking problem. Ex F at 371:19-22.
874. Kusic had previously confronted Badaczewski about her drinking problem. Ex. F at 371:19372:6; Ex. N at 256:9-10.
875. Badaczewski kept a notebook detailing the
alleged sexual harassment. Ex. E at 226:1-4; 230:3-233:6.
876. Badaczewski kept the notebook in her desk
at the NRA office. Ex. E at 225:1-13.
877. Badaczewski never told anyone about the
notebook. Ex. E at 230:3-233:6.
878. Badaczewski never showed the notebook to
Hankerson or Daube. Ex. E at 229:17-233:6.
879. Badaczewski testified that the notebook
“went missing” “after [she] “made her sexual harassment
claim.” Ex. E at 224:2-5.
880. Badaczewski testified that no one knew that
the notebook existed. Ex. E at 224:9-13.
881. When interviewed by Detective Gartland on
March 25, 2021, Badaczewski did not mention the notebook. Ex. Y.
245a
882. When interviewed by Detective Gartland on
March 25, 2021, Badaczewski did not mention retaliation.
Ex. Y.
XII.
FACTS PERTINENT TO BADACZEWSKI’S RETALIATION CLAIMS (COUNTS THREE AND
SIX)
A. Badaczewski’s December 2020 Discretionary
Bonus
883. In December of 2020, Badaczewski received
a paycheck bonus of $100 as well as a gift card for $100.
Ex. CC at ¶ 26.
884. These bonuses were discretionary and not
required by NRA policy. Ex. CC at ¶ 27.
885. Bonuses of this type are generally only provided to managers at NRA. Ex. CC at ¶ 28.
886. Prior to awarding Badaczewski these bonuses, Sharma advised Kusic, who expressed no objection
to either bonus. Ex. CC at ¶ 29.
B. Trip to Zimmerman’s Candy and Hershey’s
Chocolate World (March 19, 2021)
887. Badaczewski and Kusic went on a trip to
Zimmerman’s Candy and Hershey’s Chocolate World. Ex. E
at 218:16-18; Ex. N at 245:10-15.
888. One purpose of the trip to Zimmerman’s
Candy and Hershey’s Chocolate World was to purchase
candy for clients. Ex. E at 212:1-5; Ex. N at 246:8-14.
889. Another purpose of the trip was to purchase
chocolate-covered raisins for an upcoming office theme
day for National Chocolate Raisin Day on March 24, 2021.
Ex. E at 218:16-219:6, 221:14-223:19; Ex. N at 245:16246:7; https://nationaldaycalendar.com/national-chocolate-covered-raisin-day-march-24/.
246a
890. Purchasing chocolate-covered raisins was
part of Badaczewski’s role as NRA’s marketing coordinator. Ex. E at 212:6-8, 221:18-222:9.
891. It was not unusual for Steve Kusic to purchase candy for clients. Ex. E at 212:6-8, 221:18-222:9.
C. NRA Group Discovers that Badaczewski Sent the
Spreadsheet
892. On the morning of Friday, March 19, 2021,
Detective Gartland visited NRA’s office to follow up on Lisa
Daube’s prior complaint against Durenleau regarding the
January 7, 2021, e-mail of the Password Spreadsheet. Ex. N
at 241:11-18; Ex. X at 5 (“GARTLAND-PROD0001542”).
893. During that meeting, Steve Kusic, Kurt
Ehresman (NRA’s in-house counsel) and Lisa Daube told
Detective Gartland that they were concerned about the
Password Spreadsheet that was e-mailed to Durenleau’s
personal Gmail account on January 7, 2021. Ex. X at 5.
894. During this meeting, Kusic, Ehresman and
Daube also informed Detective Gartland that Durenleau
“was not set up to work from home and shouldn’t have had
access to any files while off work.” Ex. X at 5.
895. During this meeting, Detective Gartland reviewed the Password Spreadsheet and noted that “it was
logon information and stored passwords . . . for various client sites such as electric companies, gas companies, or any
other accounts NRA uses to pull information from for collection purposes.” Ex. X at 5-6.
896. During this meeting, Kusic, Ehresman and
Daube told Detective Gartland that they believe that Durenleau “called in to another employee and had them log in
to her computer to send the file. This email was sent before [Durenleau] was confronted about taking bonuses
from other people. They are concerned [Durenleau] may
have sent the list out to competitors or used it to perpetrate fraud.” Ex. X at 6.
247a
897. During the meeting on Friday, March 19,
2021, Gartland suggested some “investigative techniques
and things that we might look for in a different way, more
or less because he is a detective and thinks like criminals.”
Ex. N at 241:11-18.
898. Gartland gave NRA “ideas on what to look
for.” Ex. N at 242:6-11.
899. After the meeting with Gartland, Kusic asked
Doug Wilson in IT to scan the NRA system to see if anyone
was using a workstation with different credentials than
what they were assigned. Ex. N at 241:19-25.
900. Wilson told Kusic that Badaczewski’s NRA
computer had been used to log in as Durenleau. Ex. N at
242:1-5; 245:10-246:14; Ex. Z at ¶ 37.
901. At 4:59 p.m. on March 19, 2021, Wilson emailed Steve Kusic, stating that “I can see Nicole [Durenleau]’s logon at Jamie [Badaczewski’s] machine. [Badaczewski’s] brick is ‘Collect43.’”
Ex. Z-7 at 1
(“NRA0158”).
902. Computer workstations at NRA are also referred to as “bricks.” Ex. Y at 6:2-5, 9:2-13.
903. Wilson’s 4:59 p.m. e-mail listed web
browser activity under Durenleau’s login on January 6,
2021. Ex. Z-7 at 1 (“NRA0158”).
904. After receipt of the Wilson email, Kusic
made the decision to terminate Badaczewski. Ex. N at
242:1-5; Ex. Z at ¶ 39.
905. At the time he made the decision to terminate Badaczewski, Kusic was not aware of any complaints
of sexual harassment that Badaczewski made during her
employment at NRA. Ex. N at 235:18-237:3.
906. Kusic had never seen any notebook in which
Badaczewski wrote down allegations of sexual harassment. Ex. N at 247:1-23.
248a
907. Kusic was not aware of any notebook in
which Badaczewski wrote down allegations of sexual harassment. Ex. N at 247:1-23.
D. Badaczewki is Terminated, Admits her Rule Violation, and is Denied Unemployment Due to
Her Misconduct
908. On Saturday, March 20, 2021, Badaczewski
was supposed to come into the office to make up time. Ex.
J at 157:12-15.
909. Badaczewski arrived late to work on the
morning of March 20, 2021. Ex. J at 157:17-22.
910. On the morning of March 20, 2021, prior to
her arrival, Badaczewski’s desk was emptied out. Ex. N at
246:21-247:4; Ex. J at 131:2-13; 157:9-22.
911. When she arrived at work on March 20,
2021, Steve Kusic and Lisa Daube met with Badaczewski
and issued her a Corrective Action Report. Ex. N at
243:20244:2; Ex. G at “JB 12.”
912. Kusic had already made up his mind to terminate Badaczewski by the time she came into the office
on March 20, 2021. Ex. N at 243:13-17.
913. The Corrective Action Report states that
“[o]n March 19, 2021 an audit of workstation PC components was conducted. The audit found that the workstation PC brick assigned to Ms. Jamie Badaczewski, named
Collect43, as being logged on as [a] user that was not in the
office on 1/6/21.” Ex. G at “JB 12.”
914. The Corrective Action Report further states
that “We have found that Ms. Badaczewski has violated our
company policy listed below. Ms. Badaczewski logged in
under a different user and submitted company documents
to a personal Gmail account. This is a clear violation to our
electronic mail/email policy which states Company confidential emails should be distributed to personnel only.
Forwarding to outside locations is prohibited. At no time
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should an employee log in under a different user without
authorization from supervisors or directors.” Ex. G at “JB
12.”
915. The Corrective Action Report further states
that, due to the severity of this violation, Ms. Badaczewski
will be terminated effective immediately. Ex. G at “JB 12.”
916. During his interview of Badaczewski on
March 25, 2021, Detective Gartland asked Badaczewski
about the March 20, 2021, termination meeting. Ex. Y at
5:14-6:7.
917. Badaczewski told Detective Gartland that
Kusic and Daube “told [Badaczewski] that essentially that
they did an audit. I don’t know if they did an audit on me
or on her. They did an audit and they saw that I signed in
under her on my computer. It was, like, on my brick. And
at first whenever I went in there I was like, what are they
– and then I was like, oh, okay. I know what you guys are
talking about.” Ex. Y at 6:1-7.
918. During the March 25, 2021, interview, Detective Gartland asked Badaczewski “ultimately what did
[NRA] fire you for?” Ex. Y at 8:21-22.
919. Badaczewski responded “Yeah. It was because I signed in under [Durenleau’s username] -- which is,
like, a -- yeah. Huge violation.” Ex Y at 8:25-9:1.
920. Badaczewski also told Detective Gartland
that logging in as Durenleau, who she considered a friend
at the time (Ex. Y at 7:5), “obviously costed [sic] me my job,
which is unfortunate.” Ex. Y at 12:6-7.
921. Gartland then stated “It makes sense” and
Badaczewski replied “Yeah.” Ex. Y at 12:8-9.
922. Detective Gartland’s notes from the March
25, 2021, interview state that Ms. Badaczewski “said she
was fired because she violated policy. [Durenleau] asked
her to sign in under [Durenleau]’s name [so Badaczewski]
could forward an excel file with all [Durenleau]’s passwords.” Ex. X at 6 (“GARTLAND-PROD001543”).
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923. Detective Gartland’s notes from the March
25, 2021, interview further state that “[Badaczewski] was
fired immediately after [NRA] found this out for violating
company policy.” Ex. X at 6.
924. After her termination, Badaczewki filed for
unemployment. Ex. E at 206:12-17.
925. On August 25, 2021, the Pennsylvania Department of Labor and Industry, Office of Unemployment
Compensation Benefits, issued Badaczewski a Disqualifying Separation Determination. Ex. E at 38:23-39:17; Ex. G
at “JB 15.”
926. The Disqualifying Separation Determination
states that Badaczewski was “discharged for a rule violation.” Ex. G at “JB 15.”
927. The Determination further states that the
rule was reasonable and that Badaczewski was aware, or
should have been aware, of the rule. Ex. G at “JB 15.”
928. The Determination further states that Badaczewski did not show good cause for violating the rule.
Ex. G at “JB 15.”
929. The Determination advised Badaczewski
that she had 15 days to file an appeal. Ex. G at “JB 15.”
930. Badaczewski did not appeal the denial of her
unemployment benefits. Ex. E at 206:12-208:2.
Respectfully Submitted,
OBERMAYER REBMANN MAXWELL &
HIPPEL LLP
Date: May 15, 2023
/s/ Paige Macdonald-Matthes, Esquire
Paige Macdonald-Matthes, Esquire
(Pa. Attorney I.D. No. 66266)
Ivo J. Becica, Esquire
(Pa. Attorney I.D. No. 207013)
251a
200 Locust Street, Suite 400
Harrisburg, PA 17101
(717) 221-1609 Telephone
(717) 236-2485 Facsimile
Attorneys for Plaintiff, NRA Group, LLC,
and Counterclaim Defendants, Steve Kusic
and Shell Sharma
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.