McSparran v. Commonwealth Of Pennsylvania et al
MEMORANDUM re pltf's MOTION for Reconsideration 105 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 2/24/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KELLY HEFFNER, and JEFFREY
: CIVIL NO. 1:13-CV-1932
: (Judge Caldwell)
Plaintiff is Patricia McSparran. Defendants are the Commonwealth of
Pennsylvania (the Commonwealth); the Pennsylvania Department of Environmental
Protection (DEP); Kelly Heffner, at the relevant time, DEP’s Deputy Secretary for Water
Management in the Office of Water Management; and Jeffrey Logan, DEP’s Executive
Deputy Secretary for Administration and Management.
Plaintiff was formerly DEP’s Director of the Bureau of Waterways
Engineering and Wetlands, a position where she was Heffner’s immediate subordinate.
She brought this suit alleging she was given unequal pay, subjected to harassment and
then fired from her job, all on the basis of her sex.
Before the court is Plaintiff’s motion (Doc. 105) for reconsideration of our
order of February 18, 2016, granting Defendants’ motion in limine. The order excluded
from evidence certain e-mails involving Tom Bold, an alleged comparator for the purpose
of Plaintiff’s discharge claim. The e-mails contained gender-based jokes derogatory to
women and pornography. We excluded the e-mails on the basis that they were not
relevant. McSparran v. Pennsylvania, 2016 WL 687992, at *3 (M.D. Pa. Feb. 18, 2016).
Plaintiff’s reconsideration motion is prompted by Defendants’ submission on
their motion for summary judgment of evidence concerning: (1) numerous e-mails
between Plaintiff and Joseph Sieber or Gary Obleski in which Plaintiff expresses negative
criticisms of co-workers; (2) the Commonwealth’s policy on e-mail usage relating to
security; and (3) the presence of work e-mails on Plaintiff’s home computer in alleged
violation of that policy. The substance of the e-mails is set forth at Defendants’
Statement of Material Facts ((DSMF), Doc. 91 ¶¶ 66-76. The evidence relating to the
alleged violation of the e-mail policy is at DSMF ¶¶ 62-65 and ¶¶ 77-81.
In their brief in support of summary judgment, Defendants state they had a
legitimate nondiscriminatory reason for discharging Plaintiff, briefly that Plaintiff’s attitude
and certain conduct was not supportive of Heffner or the agency. (Doc. 90, ECF p. 9-10).
They also argue that Plaintiff’s e-mails demonstrate behavior and attitudes “entirely
consistent” with this reason. (Id., ECF p. 11). Based on the alleged violation of the email policy, which Defendants represent was not discovered until after Plaintiff’s
discharge, they further argue that Plaintiff’s damages should be limited, based on this
“after-acquired evidence” defense. They cite Nesselrotte v. Allegheny Energy, Inc., 615
F. Supp. 2d 397, 402-03 (W.D. Pa. 2009), in support of this defense. (Doc. 90, ECF pp.
Plaintiff argues that the Bold e-mails are now relevant and admissible
because Defendants’ position on summary judgment contradicts their earlier position that
the e-mails are irrelevant.1 Plaintiff contends Defendants’ current position contradicts
their earlier one because they now assert her e-mail usage is a legitimate
nondiscriminatory reason for her discharge. (Doc. 113, Pl.’s Br. in support, ECF p. 8).
She also contends that the after-acquired evidence defense is also based on the theory
that her e-mail usage is a valid reason for her discharge. (Id., ECF p. 9). Plaintiff
therefore argues she is entitled to introduce into evidence her male comparator’s e-mail
records because the failure to discipline Bold for his e-mail usage while disciplining
Plaintiff for hers is relevant to Plaintiff’s claims of disparate treatment.
The order on the motion in limine was interlocutory because further
proceedings were contemplated in this court. A court may revise an interlocutory order
“when consonant with justice to do so.” United States v. Jerry, 487 F.2d 600, 605 (3d Cir.
1973); In re Anthanassious, 418 F. App’x 91, 95 (3d Cir. 2011) (nonprecedential) (quoting
Jerry). More specifically, a trial court may revise an interlocutory order if that order “might
lead to an unjust result.” Id. (quoted case omitted).
Employing this standard, we disagree with Plaintiff’s position. As
Defendants correctly point out, they have not argued on summary judgment that her email usage (more accurately, her e-mail contents) are a legitimate reason for her
Alternatively, Plaintiff requests that we preclude Defendants from relying on e-mail
usage and strike DSMF ¶¶ 62 through 81.
discharge, only that the contents are consistent with the reason they give for firing her.
As Defendants also correctly point out, their after-acquired evidence defense is not based
on the contents of her e-mails but on the allegation that she possessed e-mails on her
home computer in violation of the e-mail policy.
Plaintiff also argues that Defendants violated Local Rule 7.6 by filing their
opposition brief three days late and Local Rule 7.8(a) by not including in their opposition
brief a counter-statement of facts. We have discretion to depart from our local rules and
will do so here because Plaintiff has not alleged she suffered any unfair prejudice from
the violations. See Veverka v. Royal Caribbean Cruises Ltd., 649 F. App’x 162, 167 (3d
Cir. 2016)(nonprecedential)(citing United States v. Eleven Vehicles, 200 F.3d 203, 215
(3d Cir. 2000)).
We will deny Plaintiff’s motion for reconsideration of our order of February
18, 2016, which granted Defendants’ motion in limine.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: February 24 , 2017
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