McSparran v. Commonwealth Of Pennsylvania et al
MEMORANDUM (Order to follow as separate docket entry) re 139 MOTION to Alter Judgment Rule 59(e) filed by Patricia McSparran.Signed by Honorable William W. Caldwell on 1/11/18. (dmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KELLY HEFFNER, and JEFFREY
: CIVIL NO. 1:13-CV-1932
This is an employment-discrimination case. The parties filed cross-motions
for summary judgment. On February 24, 2017, we entered summary judgment in favor of
Defendants and against Plaintiff on the claims that remained for trial. (Docs. 129 and
130). We are considering Plaintiff’s motion to alter or amend the judgment under Fed. R.
Civ. P. 59(e).
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
In her original complaint, Plaintiff made the following claims: (1) a 42 U.S.C.
§ 1983 claim based on her federal right to equal protection; (2) a 42 U.S.C. § 1983 claim
based on her federal right to due process; (3) a claim under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq.; (4) a claim under the Pennsylvania Human
Relations Act (PHRA), 43 Pa. Stat. Ann. §§ 951 et seq.; (5) a state-law claim for
defamation; and (6) a state-law claim for intentional infliction of emotional distress.
Defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). We
granted the motion. We dismissed the due-process claim and the state-law claim for
intentional infliction of emotional distress without leave to amend. We gave Plaintiff an
opportunity to amend her complaint to set forth her other claims with greater factual
support. McSparran v. Pennsylvania, 2013 WL 6631654, at *10 (M.D. Pa. Dec. 17,
Plaintiff filed an amended complaint. Defendants filed a second motion to
dismiss. As we read the complaint, Plaintiff made sexual discrimination claims
cognizable under the Equal Protection Clause, Title VII, and PHRA for: (1) failure to give
her equal pay; (2) her discharge; (3) a hostile work environment based on conduct of
John Hines, who was once a supervisor of Plaintiff; (4) a hostile work environment based
on the conduct of defendant Heffner; and (5) a retaliation claim based on Plaintiff's
complaints about disparate treatment. McSparran v. Pennsylvania, 2014 WL 1371594, at
*7 (M.D. Pa. Apr. 8, 2014). Ruling on Defendants’ motion, we dismissed the two hostile
work environment claims and decided the following five claims could proceed: (1) the
equal pay claim; (2) the discharge claim; (3) a retaliation claim based on Plaintiff's
complaints about disparate treatment; (4) a quid pro quo discharge claim based on Hines’
conduct; and (5) the state-law defamation claim. Id. at *16.
As noted above, on February 24, 2017, we granted Defendants summary
judgment on all of the five remaining claims. On the same day, we ruled on two other
motions filed by Plaintiff: (1) Plaintiff’s motion (Doc. 104) for an extension of time to
complete discovery under Fed. R. Civ. P. 56(d); and (2) Plaintiff’s motion (Doc. 105) for
reconsideration of the order granting Defendants’ motion in limine striking certain e-mails
from evidence. We denied both motions. See McSparran v. Pennsylvania, 2017 WL
736813, at *2 (M.D. Pa. Feb. 24, 2017)(Rule 56(d) motion); McSparran v. Pennsylvania,
2017 WL 758283, (M.D. Pa. Feb. 24, 2017)(reconsideration motion on Defendants’
motion in limine).
As part of the motion to alter or amend, Plaintiff’s counsel filed a declaration
(Doc. 145-4) made pursuant to 18 Pa. Cons. Stat. Ann. § 4904. In her declaration,
counsel alleged, in part, that she had contacted Chambers concerning the opportunity to
file a supplemental response to Defendants’ motion for summary judgment and was
advised to await the issuance of orders on the Rule 56(d) motion and the motion for
reconsideration before filing the supplemental response. She avers she was reasonably
expecting the rulings on the discovery motions before the ruling on summary judgment.
She was expecting an opportunity to supplement her filings in opposition to summary
judgment, including evidence newly presented on her motion to alter or amend, which
Plaintiff designated Exhibit C to her motion, the Declaration of Patricia McSparran (Doc.
139-5); the exhibits referred to in that declaration, Exhibits E through J (Doc. 139-7
through 12); and Exhibit K (Doc. 141), filed under seal.
Upon consideration of this declaration, the court concluded that it was
remiss in not granting Plaintiff an opportunity to file a supplemental response before
ruling on Defendants’ summary judgment motion. Based on our conclusion, although a
motion to alter or amend usually cannot be used to argue evidence previously available,
see Worbetz v. Ward North America, Inc., 54 F. App’x 526, 533 (3d Cir. 2002)
(nonprecedential), we decided to consider the new evidence Plaintiff presented on her
motion to alter or amend. As noted, the new evidence was Exhibit C to her motion, the
Declaration of Patricia McSparran (Doc. 139-5); the exhibits referred to in that
declaration, Exhibits E through J (Doc. 139-7 through 12); and Exhibit K (Doc. 141).
The McSparran declaration (Doc. 139-5) was a seventeen-page, singlespaced narrative which included evidence not directly bearing on Plaintiff’s discrimination
claim. We issued an order (Doc. 147) requiring Plaintiff’s counsel to edit the declaration
to focus solely on the facts supporting Plaintiff’s discrimination claim under the burdenshifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). The declaration was to be in numbered paragraphs, and Plaintiff
was to show how each fact was relevant to any of the ways at step 3 she may meet her
burden of showing pretext under McDonnell Douglas. (Id.) After the edited declaration
was filed, Defendants were given an opportunity to address the relevance of the new
evidence, including the edited declaration. (Id.) Plaintiff was granted an opportunity to
file a reply brief. (Id.)
After two extensions of time, Plaintiff filed an edited declaration. (Doc. 1521). The edited declaration did provide some numbering and two headings that bore on
pretext, but expanded the declaration from seventeen to twenty-seven pages, and was
silent on many of the 147 paragraphs as to how they were relevant to pretext. The
parties have completed their briefing on the new evidence.
There are three sets of briefs: (1) a set relating to Plaintiff’s motion to alter
or amend; (2) a set relating to Plaintiff’s edited declaration; and (3) a set relating to the
exhibits referred to in Plaintiff’s original declaration.
Standard of Review
Typically, the scope of a motion to alter or amend “is extremely limited.”
Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). A motion for reconsideration under
Rule 59(e) is used “‘to correct manifest errors of law or fact or to present newly
discovered evidence.’” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)(quoting
Max's Seafood Café ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999)). “A proper Rule 59(e) motion therefore must rely on one of three grounds: (1) an
intervening change in controlling law; (2) the availability of new evidence; or (3) the need
to correct a clear error of law or fact or to prevent manifest injustice.” Id. It cannot be
used to reargue issues that the court has already considered and disposed of. Blanchard
v. Gallick, No. 09–1875, 2011 WL 1878226, at *1 (M.D. Pa. May 17, 2011)(Caldwell, J.).
Plaintiff acknowledges this standard and attempts to meet it by arguing that
in ruling on the summary judgment motions the court committed clear error of law in
applying the summary judgment standard. (Doc. 146, Pl.’s Rule 59(e) Reply Br. at ECF
p. 1). As noted above, however, the court will also consider Plaintiff’s new evidence,
although such previously available evidence is normally not considered when deciding a
Rule 59(e) motion. Worbetz, 54 F. App’x at 533.
The standard of review for a Rule 59(e) motion “relates back to the
standard applicable in the underlying decision.” Johnson v. Fed. Express Corp., 996 F.
Supp. 2d 302, 324 (M.D. Pa. 2014). Thus, “[w]hen a motion for reconsideration
challenges the court’s decision to grant or deny summary judgment, Federal Rule of Civil
Procedure 56 controls the analysis.” Id.
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We “must view all evidence and draw all inferences
in the light most favorable to the non-moving party” and we will only grant the motion “if
no reasonable juror could find for the non-movant.” Lawrence v. City of Phila., 527 F.3d
299, 310 (3d Cir. 2008).
We will not provide a separate background section as we will assume
familiarity with the background provided in the memorandum (Doc. 129) dealing with the
parties’ cross-motions for summary judgment. We will supplement the record as
A. The “Porngate Report” does not support Plaintiff’s claims
Plaintiff was terminated without notice or opportunity to respond. She
argues that, after the parties filed their motions for summary judgment, the
Commonwealth released a report on November 22, 2016, sometimes referred to as the
“Porngate Report” (Doc. 139-3, Ex. A to Plaintiff’s motion), that supports several of her
claims, including her now-dismissed due process claim.
The Report deals with the widespread use of the Commonwealth’s e-mail
system to send and receive inappropriate e-mails, including pornography and genderbased derogatory jokes. According to Plaintiff, the Commonwealth delayed releasing the
Report so that those named in the Report could defend themselves. (Doc. 139-6,
newspaper article). Plaintiff argues the Report is relevant here because:
The findings of the Porngate Report contradict and rebut
Defendants’ purported business reasons for discharging
Plaintiff, support Plaintiff’s arguments of pretext and
preferential treatment towards males, and establish Plaintiff’s
viable claims under Section 1983 that her liberty interests and
due process rights were violated. Plaintiff was not provided
notice or equal opportunity to contest and rebut the alleged
accusations that resulted in her discharge, tarnished her
reputation, and foreclosed employment opportunities.
(Doc. 139, Pl.’s motion to alter or amend at ECF p. 2).
We disagree that the Porngate Report assists Plaintiff. For at least one
reason the report has no relevance to the discovery sought – Plaintiff was not disciplined
in Porngate (and we hasten to add she had no connection whatsoever to that scandal).
There is therefore no comparator evidence that would make the Porngate Report
relevant.1 It is for this reason that Plaintiff’s reliance on Tom Bold, a male DEP employee
caught in the Porngate scandal, is also irrelevant.
B. The defamation claim
Plaintiff argues we erred in entering judgment against her on the
defamation claim. She points out that we allowed this claim to survive the motion to
dismiss the amended complaint. See McSparran v. Pennsylvania, 2014 WL 1371594, at
*15 (M.D. Pa. Apr. 8, 2014). We agree that we allowed this claim to survive the motion to
dismiss. However, we decided otherwise at the summary judgment stage. Plaintiff’s
defamation claim was based on Heffner’s statements in her February 12, 2012 e-mail.
(Doc. 129, summary judgment memorandum at ECF p. 57). We decided on summary
judgment that Plaintiff had no defamation claim because “the statements were not
A comparator is an employee who is “similarly situated” to the plaintiff. “A
determination of whether employees are similarly situated takes into account factors such as
the employees' job responsibilities, the supervisors and decision-makers, and the nature of the
misconduct engaged in.” Wilcher v. Postmaster General, 441 F. App’x 879, 882 (3d Cir.
defamatory as they were only criticisms of Plaintiff’s job performance. This reason alone
defeats the claim.” (Doc. 129, at ECF p. 60)(citing Wendler v. DePaul, 499 A.2d 1101,
1103 (Pa. Super. Ct. 1985)(comments that adversely reflect on a plaintiff’s fitness for her
profession are defamatory, but criticism of her job performance is not). Any other
arguments Plaintiff has about the resolution of the defamation claim do not bear on this
ruling. We will therefore not resurrect the defamation claim.
C. The quid pro quo claim
Plaintiff claims she was discharged because she refused John Hines’
sexual advances. Hines was once the Deputy Secretary for Water Management and
Plaintiff’s supervisor. In support, she points to the evidence that Hines told Jeffrey
Means, Plaintiff’s replacement, he would be a bureau director again, more than likely
going “wherever the 102/105 Program ended up.” That “program” was where Means
spent most of his career. (Doc. 107-17, ECF pp. 8-9, Means Dep.). The Chapter
102/105 programs were moved into the Bureau of Waterways Engineering and Wetlands,
Plaintiff’s bureau before she was discharged.
We fail to see how this evidence supports Plaintiff’s quid pro quo claim. We
entered judgment in favor of Defendants on this claim because the evidence showed that
Heffner had made the decision to discharge Plaintiff, not Hines.
D. Alleged violation of the Commonwealth’s hiring and
Plaintiff claims she was harmed by Defendants’ alleged violation of the
Commonwealth’s hiring and anti-discrimination policies. (Doc. 146, Pl.’s Reply Br. at ECF
p. 7). This argument seems to relate to her pretext claim that males were treated more
favorably. The Commonwealth’s Management Directive 515.16 provides that “to ensure
equitable treatment of minorities and females during the selection process,” in pertinent
part, “information must be provided on all candidates who applied or were referred . . . .”
(Doc. 146-4, ECF p. 2). The Commonwealth’s Management Directive 515.10 provides
that “Non-Civil Service vacancies will be filled by the best available candidates based on
objective, work-related job criteria.” The policy further states that “No agency shall
interview an applicant before receiving approval from BSE.” (Doc. 146-5, at ECF p. 2).
BSE is the Bureau of State Employment, the bureau within the Office of Administration
that gathers resumes of candidates that BSE would forward to agencies that have
vacancies. (Doc. 91, (DSMF ¶ 16)). According to Melanie DePalma, BSE’s Director, the
Commonwealth “prohibits a sexual relationship between a supervisor and their
subordinate in that (sic) subordinate receiving favorable treatment.” (Doc. 146-7, at ECF
pp. 3-4, DePalma Dep.).
We reject Plaintiff’s reliance on these directives and DePalma’s testimony.
Plaintiff presents us with no authority showing that the directives provide her with a cause
of action, and her discharge claim was properly analyzed under McDonnell Douglas, infra,
which applies not only to a Title VII claim but to a parallel state-law claim as well. We add
that Plaintiff is not making a claim that DEP refused to hire her, which the cited portions of
the directives would seem to apply to.
E. The discharge claims and evidence of pretext from
Plaintiff’s edited declaration and additional exhibits
Plaintiff claimed her discharge was gender-based and sought relief under
the Equal Protection Clause of the Fourteenth Amendment, Title VII, and PHRA. These
claims were all analyzed under the three-step, burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),
for pretext cases.
As noted, Plaintiff’s counsel asserted in a declaration accompanying
Plaintiff’s motion to alter or amend that she was expecting to be able to file a
supplemental response to Defendants’ motion for summary judgment. That supplemental
response would include the following new evidence that was filed with the reconsideration
motion (although the evidence was available to Plaintiff previously): Exhibit C, the
Declaration of Patricia McSparran (Doc. 139-5); the exhibits referred to in that declaration,
Exhibits E through J (Doc. 139-7 through 12); and Exhibit K (Doc. 141).
Upon consideration of the declaration, we decided we were remiss in not
allowing a supplemental response. Based on that conclusion, we said we would consider
the new evidence but that Plaintiff would have to submit an edited McSparran declaration.
The declaration was to focus solely on the facts supporting Plaintiff’s discrimination claim
under the burden-shifting framework in McDonnell Douglas, it was to be in numbered
paragraphs, and Plaintiff was to show how each fact was relevant to any of the ways at
step 3 she may meet her burden of showing pretext under McDonnell Douglas.
Briefly, the McDonnell Douglas analysis proceeds in three steps. In the first
step, the plaintiff has the burden of establishing a prima facie case of discrimination.
Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). In the second step, “the burden
of production then shifts to the defendant to offer a legitimate non-discriminatory
justification for the adverse employment action.” Id. (citation and internal quotation marks
omitted)(brackets omitted). In the third step, the burden of production shifts back to the
plaintiff “to provide evidence from which a factfinder could reasonably infer that the
employer's proffered justification is merely a pretext for discrimination.” Id. “A plaintiff
may demonstrate pretext at summary judgment in two different ways. In the first way, the
plaintiff may point to evidence in the record that would cause a reasonable juror to
disbelieve the employer's articulated legitimate non-discriminatory reason . . . .” Id. at
430. In the second way, “the plaintiff may also defeat summary judgment by pointing to
evidence that indicates that the employer acted with discriminatory animus.” Id. at
Plaintiff can satisfy the first method of demonstrating pretext by providing
evidence that “demonstrate[s] such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence.” Id. at
427 (citation and internal quotation marks omitted). However, Plaintiff “cannot simply
show that the employer's decision was wrong or mistaken, since the factual dispute at
issue is whether discriminatory animus motivated the employer, not whether the employer
is wise, shrewd, prudent, or competent.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.
Plaintiff can satisfy the second method of demonstrating pretext by pointing
to evidence that would lead a reasonable juror to believe “that an invidious discriminatory
reason was more likely than not a motivating or determinative cause of the employer's
action.” Shaner v. Synthes (USA), 204 F.3d 494, 501 (3d Cir. 2000)(internal quotation
marks and quoted cases omitted). Specifically, a plaintiff could satisfy the second way
“by showing that the employer in the past had subjected [her] to unlawful discriminatory
treatment, that the employer treated other, similarly situated persons not of [her]
protected class more favorably, or that the employer has discriminated against other
members of [her] protected class or other protected categories of persons.” Fuentes,
supra, 32 F.3d at 765.
In their brief in opposition to the edited declaration, Defendants argue the
following. First, the declaration should not be considered as Plaintiff failed to follow the
court’s order. As noted, the edited declaration (Doc. 152-1) did provide some paragraph
numbering and two headings that bore on pretext, but expanded the declaration from
seventeen to twenty-seven pages. Defendants maintain that, given the benefit of the
court’s discretion in allowing her to submit additional information, instead of focusing
solely on the facts supporting pretext, Plaintiff filed an expanded declaration “not focused
on anything.” (Doc. 155, Defs.’ Br. in Opp’n at ECF p. 8)(emphasis in original).
Defendants contend that since the edited declaration is not in the form ordered, we
should conclude that it fails to show pretext. Defendants warn that if we accept anything
in the edited declaration, we will allow Plaintiff to control the proceedings in an apparent
hope on her part to place something in the record that would support her claim.
Second, since Defendants’ ability to comment on the relevance of the
edited declaration was dependent on Plaintiff’s complying with the court’s order, and
since Plaintiff did not do so, Defendants’ position is that the declaration contains nothing
of relevance on the issue of pretext.
Third, even if the allegations are considered, they do not show pretext.
Overall, the allegations indicate Plaintiff wants the court “to act as a super-HR department
– comparing qualifications; considering staffing decisions; evaluating the practice of
employee movement throughout the agency; deciding whether arguments over budget
priorities were justified; deciding whether going over her supervisor’s head was
appropriate; and the like.” (Doc. 155, Defs.’ Br. in Opp’n at ECF p. 12). Defendants
assert such allegations are not evidence of pretext because evidence that the employer is
wrong or mistaken in the employment decision does not show pretext. Fuentes, 32 F.3d
Defendants next assert the first 39 paragraphs list her background and
experience and have nothing to do with pretext. Defendants then note that in paragraphs
40-45, Plaintiff compares her qualifications to those of Means and asserts he was not as
qualified as she. Defendants contend that to demonstrate pretext, Plaintiff would have to
show that Means’ qualifications were “so much lower” than Plaintiff’s that the fact finder
“could disbelieve the claim that the employer was honestly seeking the best qualified
candidate.” Steele v. Pelmor Laboratories Inc., 642 F. App’x 129, 135 (3d Cir.
Defendants next argue that the court recognized that Plaintiff’s termination
was because of her personal attitude and not her qualifications, (Doc. 155, Defs.’ Br. in
Opp’n at ECF p. 14), and that attitude at work is a valid reason for discharge that does
not implicate employment discrimination, citing Willis v. UPMC Children’s Hosp., 808 F.3d
638, 648 (3d Cir. 2015). Further, not posting the job or interviewing candidates is also
insufficient to show pretext. See Jones v. Temple Univ., 622 F. App’x 131, 135 (3d Cir.
2015)(nonprecedential)(not posting a job in violation of policy was not enough, among
other things, to show that the reason for failure to hire was pretextual). Thus it is
immaterial that the job was not posted or that Means was not interviewed for Plaintiff’s
Defendants contend we should also reconsider our decision to exclude
other evidence from the record on the basis of hearsay and to now consider that evidence
on Plaintiff’s motion to alter or amend.2 By way of background, Defendants’ statement of
material fact at ¶¶ 60, 95, and 97 relied on the Commonwealth and DEP’s answers to
Defendants filed a motion for reconsideration of the excluded evidence. (Doc. 154).
The motion will be dismissed as moot since Defendants can simply argue the legal point in
their brief on the edited declaration. (See Doc. 155 at ECF pp. 18-20).
Plaintiff’s first set of interrogatories (Doc. 91-7). In those answers, Defendants set forth
factual statements by certain identified co-workers that Defendants assert are consistent
with Heffner’s views of Plaintiff’s conduct at work. Plaintiff objected to these statements
because they were not verified by the individuals, nor made under oath or penalty of
perjury by the individuals. We decided the statements were inadmissible hearsay, even
though the answers were signed by an officer or agent of the Commonwealth and DEP,
as permitted under Fed. R. Civ. P. 33(b)(1)(B). (Doc. 129, n.12, n.16, and n.19). Citing
Katiroll Co., Inc. v. Kati Roll & Platters Inc., No. 10-CV-3620, 2014 WL 12634921, at *6
(D.N.J. Apr. 8, 2014), Defendants maintain we were mistaken, that under Rule
33(b)(1)(B) the statements were admissible on summary judgment because the officer or
agent need not have personal knowledge to sign the interrogatory answers.
We believe our ruling was correct. Katiroll is distinguishable. In that case,
the plaintiff challenged the validity of answers to interrogatories on the grounds that: (1)
no officer or agent of the answering corporation furnished the information set forth in the
answers; and (2) the answers did not show the name of any witness who could testify at
trial about the information set forth in the answers. 2014 WL 12634921, at *6. Rejecting
the argument, the court stated that Rule 33(b)(1)(B) did not require the agent signing the
answers to have personal knowledge of the information set forth in them.
The instant case is different because we do not deal with the requirements
of Rule 33(b)(1)(B), but whether answers to interrogatories are admissible in evidence.
We decided that these particular interrogatory answers were not admissible because they
constituted hearsay, citing Heritage Bldg. Group, Inc. v Plumstead Twp., 1996 WL
460049, at *13 (E.D. Pa. 1996); and Betco Corp. v. Peacock, No. 14-CV-193, 2015 WL
856603, at *2 (W.D. Wis. Feb. 27, 2015)(interrogatory answers signed on behalf of
plaintiff company by two of its officers would be considered but only to the extent the
answers contain information the officers could testify to at trial).3
As to Defendants’ objections that Plaintiff failed to comply with the court
order, Plaintiff counters that the length and detail in the edited declaration were necessary
to oppose what she considered the six vague reasons, described below, that Heffner
gave for her discharge. (Doc. 158, Pl.’s Br. in Opp’n at ECF p. 8). Further, the edited
declaration contained “voluminous detailed facts” concerning less favorable treatment
than similarly situated male bureau directors. (Doc. 158, Pl.’s Br. in Opp’n at ECF p. 8).
In her opposition brief, Plaintiff goes on to explain the relevance of each allegation.
It is true that Plaintiff has not complied with the court order, but in light of
her explanations, and the ability to follow Plaintiff’s argument as to relevance, we will not
strike the edited declaration but examine it to see if it asserts sufficient pretext.
Interrogatory answers may be submitted as part of the record on summary
judgment, Fed. R. Civ. P. 56(c)(1)(A), and answers to interrogatories can be signed by an
officer or agent of a party. Fed. R. Civ. P. 33(b)(1)(B). That is what occurred here: a DEP
agency lawyer signing the answers on behalf of the Commonwealth and DEP. But a party
may object that “material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence,” Rule 56(c)(2), and answers to interrogatories “may [only] be
used to the extent allowed by the Federal Rules of Evidence.” Fed. R. Civ. P. 33(c).
1. Showing pretext by pointing to evidence in the
record that would cause a reasonable juror to
disbelieve the employer's articulated legitimate
non-discriminatory reasons for the discharge
Plaintiff asserts some of the allegations show that a reasonable juror could
disbelieve the reasons given for her discharge, one way of showing pretext. As we noted
in our summary judgment memorandum, Defendants supplied the following reasons for
First, in an e-mail dated February 16, 2012, Heffner provided the following
The incumbent in the position of Director of Waterways
Engineering and Wetlands has failed to demonstrate interest
in supporting the goals of the Administration or working
successfully within the fiscal parameters that have been
provided. The incumbent goes beyond accepted advocacy
for program and staff.
The incumbent in this position has failed to demonstrate
leadership qualities that support the Agency and the
Administration and further has not demonstrated the ability to
act as a team player. There is no support of fellow Bureau
Directors, to the point of disparaging language about one
specific fellow Director.
The overall attitude is one of superiority and disdain for those
in the Chain of Command.
(Doc. 85-5, ECF p. 3).
Second, in an affidavit presented in Plaintiff’s EEOC proceedings, Heffner
gave the following explanation of her decision:
As the immediate supervisor of Patricia McSparran, I
determined that the negative attitude and conduct which she
demonstrated in carrying out her official responsibilities over
the months preceding my decision in November 2011 made
her a poor choice to head an important Administration
initiative. Ms. McSparran’s conversations were rarely without
rancor, sarcasm, complaint, or venom. For instance, during a
bureau director meeting I convened, Ms. McSparran stated
that she had no idea why Interstate Waterways was
converted to a bureau. She called into question the director’s
ability to do the job. She did not support the efforts of the
Administration. For instance, in the Rendell
Administration, there was $1.2 million for Flood Protection. It
was originally placed in the budget to support the economy to make flood repairs, to put people to work right away. In
previous budgets, when the agency received funding, the
bureau paid for its complement of personnel from that fund.
Governor Corbett’s administration decided to remove the line
item. DEP did not furlough the employees for whom funding
was no longer available. We moved the affected employees
to other positions in the agency.
Ms. McSparran, however, was particularly offended by the
decision. She indicated that we moved good, smart people
and stated that they would leave the agency because of the
moves. I followed-up on her concerns . . . [and] learned that
what we did to reassign people was correct and appropriate.
I shared that information with Ms. McSparran. However, she
would repeatedly come to my office and say that the persons
we transferred were unhappy; we were adversely impacting
careers. . . . I met with an employee who was an Engineer in
Training (EIT) and his supervisor. The employee did not
covey any concerns about the move. . . .
On another occasion that I recall, Ms. McSparran bypassed
the chain of command and went directly to Executive Deputy
Secretary Logan to ask how the agency could retrieve the line
item money. She continued to disagree with my direction and
the Administration’s goals.
When I would give an assignment to directors, I would
provide due dates. Everyone was clear that when I said “by
close of business” that meant by 4 p.m. because of my
support staff’s work schedules. Ms. McSparran would
typically submit the information after 4 p.m. We were working
together on a two-year plan. Ms. McSparran’s entire
submission was a series of complaints that the Bureau
wanted to do certain things, but didn’t have the money or
complement. I would ask, based on the resources that she
had, what statutorily mandated work could and would be
performed. After those conversations, Ms. McSparran’s
attitude was modified a bit. But, the change was not longterm or consistent.
(Doc. 82-28, ECF pp. 2-3, Heffner EEOC Aff. of Nov. 28, 2012).
Several reasons for discharge are presented in these statements. It is not
just one reason, her attitude, as Defendants currently assert. (Doc. 155, Defs.’ Br. in
Opp’n at ECF p. 16). Other reasons from the February 16, 2012 e-mail are: (1) Plaintiff
failed to demonstrate interest in supporting the goals of the Administration or working
successfully within the fiscal parameters that were provided; (2) Plaintiff went beyond
accepted advocacy for program and staff; (3) Plaintiff failed to demonstrate leadership
qualities that supported the Agency and the Administration; (4) Plaintiff did not
demonstrate the ability to act as a team player; (5) Plaintiff provided no support for fellow
Bureau Directors, to the point of using disparaging language about a fellow Director; and
(6) her overall attitude was one of superiority and disdain for those in the chain of
Plaintiff’s edited declaration contradicts some of these reasons.
Paragraphs 18 through 32 certainly show that Plaintiff was competent at her job and in
that sense could be said to support the goals of the Administration, work successfully
within fiscal parameters, stay within accepted advocacy for program and staff, show
leadership qualities that support the Agency and the Administration and act as a team
Plaintiff has added to these allegations the testimony of Dana Aunkst, a
fellow bureau director. He testified that he and Plaintiff were colleagues who worked well
together. (Doc. 107-18, Aunkst Dep. Ex. QQQ, at ECF p. 3). Aunkst said that in all the
times he worked with her, she was a team player and a strong advocate for her
employees. (Doc. 82-13, Aunkst Dep. at ECF p. 11). Plaintiff also avers she got along
with fellow bureau director Glenn Rider. (Doc. 152-1, McSparran Declaration ¶ 71).
Plaintiff also directly contradicts Heffner’s statement that Plaintiff would
typically submit information late, more specifically, after the 4:00 p.m. deadline Heffner
imposed. Plaintiff affirms that she “met all deadlines from Kelly Heffner on the due dates
and by specific times when it was communicated to me.” (Doc. 152-1, McSparran
Declaration ¶ 83). See Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005)(plaintiffs
must “present evidence contradicting the core facts put forward by the employer as the
legitimate reason for its decision”).
We believe these allegations demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence.
A plaintiff is not required to “cast doubt on each proffered
reason in a vacuum. If the defendant proffers a bagful of
legitimate reasons, and the plaintiff manages to cast
substantial doubt on a fair number of them, the plaintiff may
not need to discredit the remainder. That is because the
factfinder's rejection of some of the defendant's proffered
reasons may impede the employer's credibility seriously
enough so that a factfinder may rationally disbelieve the
remaining proffered reasons, even if no evidence undermining
those remaining rationales in particular is available.”
Steward v. Sears, Roebuck & Co., 231 F. App’x 201, 211 (3d Cir. 2007)
(nonprecedential)(quoting Fuentes, 32 F.3d at 764 n.7).
2. Showing pretext by pointing to evidence in the
record that the employer treated other, similarly
situated persons not of Plaintiff’s protected class
McSparran’s edited Declaration (Doc. 152-1) and accompanying exhibits
contain the following allegations that she claims show favoritism to males:4
“Unlike the male directors and staff that [Heffner]
communicated with often and frequently invited to meetings,
she rarely communicated with me” and [s]he regularly met
with [Plaintiff’s] male replacement Jeffrey Means.” ¶ 83.
According to Means, Heffner came down to his office to meet
about the programs. Heffner came straight to Means if she
needed to have an answer about programs in his department.
(Doc. 139-9, Ex. G, Means Dep. at ECF pp. 3-4.
When Heffner had been Plaintiff’s supervisor for eight
months, she “rarely communicated with” Plaintiff “unlike the
men with whom she met frequently on their programs.” ¶ 85.
“Kelly Heffner perpetuated a pattern and practice of treating
the male bureau directors and male staff members more
favorably and she excluded me from crucial business
information and meetings that had a negative impact on
management of my bureau’s programs.” ¶ 98.
The paragraphs cited are from Doc. 152-1.
“Kelly Heffner did not bring me to meetings with the Secretary
of DEP, Executive Staff, the Governor’s Office, and other
agencies on my programs.” ¶ 99.
“Kelly Heffner directly invited my male sections chiefs to a
meeting on high level capital budget issues relative to my
bureau. She ignored me and directed her attention solely to
my subordinate male section chiefs. Despite that I continually
answered all of her questions, she addressed questions and
discussion with the male staff instead of me. ¶ 101.
“Kelly Heffner regularly visited the male staffers’ offices in my
bureau to catch up or discuss issues in the bureau but she
would not visit me the bureau director even when I directed
issues to her attention by email. I saw her in the male staff
offices including the offices of Tom Bold and Roger Adams.”
“Kelly Heffner demonstrated her preference for the male
bureau directors as soon as she became Acting Deputy
Secretary in March 2011 until the last day I worked, April 5,
2012. She placed Glenn Rider in charge in her absence
overlooking me who was more senior. She also placed her
lesser male Executive Assistant, Duke Adams in charge over
me. For example, right after become Acting Deputy
Secretary, she was on sick leave from March 31, 2011
through April 16, 2011 and put Glenn Rider in charge the
entire time. Beginning October 24, 2011 for a week and a
half she placed Duke Adams in charge in her absence. The
week of September 12, 2011 she placed Glenn Rider in
charge despite the fact that the biggest issue at the time was
flood recovery efforts, something for which I was very much
involved.” ¶ 106.
“Supervisor Kelly Heffner precluded me from attending
meetings with Executive Staff or outside agencies but did not
exclude the male bureau directors.” ¶ 109.
“As my supervisor [Heffner] did not come down to talk to me,
she did not call me, she cancelled one-on-one and bureau
director meetings, and did not include me in any meetings on
my programs with her and Executive Staff. I was aware she
held meetings with the male bureau directors Glenn Rider and
Andrew Zemba. ¶ 110.
Defendants provided Plaintiff with certain of Heffner’s Outlook calendars
showing scheduled meetings. (Doc. 152-1, McSparran Decl. ¶ 110). Plaintiff avers that
her name does not appear on any of the calendar entries produced, (id.), including those
she has submitted in evidence. (Doc. 152-1, McSparran Decl. ¶ 110). Plaintiff’s Exhibit
SSS (Doc. 108-11) and Exhibit K (Doc. 141) are selected calendar entries. They show for
thirty-two days the meetings Heffner had, where they took place, and persons in
attendance. Contrary to Plaintiff’s absence from all calendar entries, it appears that for
the entries submitted into evidence, Glenn Rider and Andrew Zemba, fellow bureau
directors, had meetings with Heffner; eleven for Zemba, six for Rider, and three meetings
with both in attendance. Further, Plaintiff was not invited to at least two meetings she
would have been expected to attend because she had worked on the items that were the
subject of the meetings. (Doc. 152-1, McSparran Decl. ¶ 107 and Doc. 141, at ECF p.
19; Doc. 152-1, McSparran Decl. ¶ 108 and Doc. 108-11, at ECF p. 9).
Further, as noted in paragraph 109 of her Declaration, quoted above,
Heffner excluded Plaintiff from attending meetings with Executive Staff or outside
agencies but did not exclude the male bureau directors. Rider and Zemba were included
in such meetings, according to the Outlook calendars. (Docs. 141-2, 141-4, 141-7, 14113, 141-17, and 141-23).
Defendants say the Outlook calendars present no relevant evidence for the
First, whatever these printouts show, there is no evidence
that these meetings even occurred, as opposed to being
cancelled, postponed, or the invitation revised. Second, even
these printouts show that women were frequent invitees.
Third, the purpose of many, if not all, of the alleged meetings,
is unclear. Plaintiff’s invitation status is irrelevant for
meetings that have nothing to do with her area of expertise.
Fourth, even for alleged meetings for which the purpose can
be remotely inferred, such meetings have nothing to do with
McSparran’s area of expertise. Fifth, the Court has no idea
which printouts McSparran omitted, so there is no context
whatsoever for this information.
(Doc. 161, Defs.’ Br. re Exhibits at ECF p. 8).
We disagree with Defendants’ assessment of the Outlook calendars. The
calendars were used to set up meetings. Plaintiff avers in her declaration that she was
not listed on any of them, even those she did not submit into evidence. Further, she
points to entries where it would seem that she should have been invited. We think the
Outlook calendars are sufficiently probative to assist Plaintiff in opposing summary
Defendants contend that since the court has recognized that Plaintiff’s
discharge focused on her attitude rather than her qualifications, if we consider pretext
evidence from Plaintiff, we should also consider other evidence Defendants have already
placed in the record at Doc. 94 and at Defendants’ statement of material fact ¶¶ 66 to 76.
(Doc. 91). Specifically, we should consider e-mails Plaintiff sent by way of her DEP email account that purportedly show her “regularly demean[ing] the intelligence and
competence of her colleagues.” (Doc. 155, Defs.’ Br. in Opp’n at ECF p. 17). Defendants
assert this evidence supports Heffner’s conclusion that Plaintiff had to be discharged
because of her attitude toward co-workers. Defendants contend that this evidence shows
that there is no genuine dispute of fact concerning the validity of Plaintiff’s discharge,
even if Plaintiff’s new evidence of pretext is considered.
We disagree that this evidence entitles Defendants to summary judgment.
Heffner did not rely on just one reason for Plaintiff’s discharge. We believe the evidence
Plaintiff has submitted on pretext allows her case to go forward on the claims based on
her discharge, even if the cited e-mails are considered.
In our memorandum granting summary judgment on the gender-based
discharge claims, we dismissed Plaintiff’s evidence that she was subjected to
discriminatory treatment. Plaintiff appeared to present the following evidence at that time.
First, Heffner excluded Plaintiff from business meetings attended by
the male bureau directors. (Doc. 129, summary judgment memorandum at ECF p. 45).
We dismissed this evidence because it was based on only eight entries from Heffner’s
Outlook calendars, which while they showed no mention of Plaintiff, did not include
Zemba either and Rider only once. We therefore did not consider them sufficiently
probative. (Doc. 129, at ECF p. 46). As noted, however, Plaintiff has supplemented
those calendar entries.
Second, Plaintiff asserted Heffner excluded Plaintiff from business
communications, relying on the following evidence:
Heffner did not stop by Plaintiff’s office to discuss issues that
Plaintiff had raised by e-mail, but would meet with male
staffers to discuss the issues; “rarely responded to e-mails
from” Plaintiff; “often cancelled monthly one-on-one meeting
with Plaintiff,” and did not include Plaintiff in meetings with
Executive Staff or the Governor’s Office on her programs.
(Doc. 129, at ECF pp. 46-47)(footnote omitted). We dismissed this evidence by stating:
We do not find this evidence sufficient at the summary
judgment stage to establish discriminatory treatment. The
evidence shows that Heffner had meetings with male
subordinates, but Plaintiff admits she had meetings with
Heffner as well. Plaintiff admits she met with Heffner on
January 10, 2012. (Doc. 82-21, ECF p. 5, Pl.’s answers
to Defs.’ first set of interrogatories). She also met with
Heffner on January 31, 2012. (Doc. 107-27). Plaintiff also
says Heffner failed to meet with her on issues raised in emails
but admits Heffner did respond to her e-mails, albeit rarely.
Plaintiff also says Heffner “often cancelled one-on-one
meetings,” but this means that she did attend those meetings
on occasion. As for failing to include Plaintiff in meetings with
Executive Staff or the Governor’s Office on her programs, this
is not sufficient evidence by itself to allow a factfinder to
decide that Plaintiff’s discharge was gender-based.
(Doc. 129, at ECF . 47). Upon further reflection, we think this analysis should have been
left to the jury to determine if the minimal contact Plaintiff had with Heffner was due to
We add that we dismissed Heffner’s failure to include Plaintiff in meetings
with Executive Staff or the Governor’s Office on her programs on the basis that, by itself,
it was insufficient evidence. We did the same with the evidence that Heffner consistently
placed Rider and Adams in charge of the office rather than Plaintiff. However, evidence
cannot be considered in isolation. See Bray v. Marriott Hotels, 110 F.3d 986, 991 (3d Cir.
1997)(“we must determine whether the totality of the evidence would allow a reasonable
factfinder to conclude” that bias has been established)(emphasis in original). We find,
therefore, that we committed a clear error of summary-judgment law in our prior analysis
involving evidence on the discharge claims.5
F. The Retaliation Claim
We granted summary judgment on the retaliation claim based on our
conclusion that there had been no adverse action, which in turn was based on our ruling
that there was no disparate treatment, as described above. (Doc. 129, at ECF pp. 5152).
Since we now find sufficient evidence of disparate treatment, the retaliation claim
survives summary judgment.
G. The Equal Pay Claim
Plaintiff indirectly challenges the entry of summary judgment on her equal
pay claim. (See Doc. 146, Pl.’s Rule 59(e) Reply Br. at ECF pp. 12-13). We have
reviewed the argument and conclude that summary judgment was proper on the equal
pay claim for the reasons given in our summary judgment memorandum. (See Doc. 129,
at ECF pp. 52-55).
We observe that Plaintiff argues that disparate treatment is shown by Jeffrey Means
and Duke Adams being given promotions without having to go through a competitive process.
We adhere to our prior reasons why this was not disparate treatment. (See Doc. 129, at ECF
Unresolved issues from Defendants’ summary judgment motion
In our February 24, 2017, order we disposed of Plaintiff’s remaining claims
without having to resolve two other issues Defendants raised. Since we are now allowing
certain claims to proceed, we will address those unresolved issues.
First, Defendants argue Plaintiff’s damages should be limited because she
committed a dischargeable offense by retaining DEP documents on her home computer
after she was terminated, a violation of Commonwealth policy. However, Defendants
admit that they lack enough information to determine if Plaintiff’s alleged misconduct was
sufficient to lead to her dismissal. They nonetheless request a ruling under Fed. R. Civ.
P. 56(g) to establish certain facts that would support a ruling in future proceedings in this
case that she would have been discharged. We decline to do so, although Defendants
can pursue this issue at trial.
Second, Defendants argue that Plaintiff’s damages should be limited under
the doctrine of judicial estoppel based upon alleged inconsistent statements she made in
this case and in worker’s compensation proceedings she has also pursued. We decline
to do so for two reasons. To begin with, Defendants do not tell us the specific form
judicial estoppel should take, requesting only that Plaintiff “should be judicially estopped
in some form here.” (Doc. 90, ECF p. 29). Further, we do not believe the standard
Defendants employ is appropriate to a claim of judicial estoppel in this case.
“Judicial estoppel is a ‘judge-made doctrine that seeks to prevent a litigant
from asserting a position inconsistent with one that [he or she] has previously asserted in
the same or in a previous proceeding.’” Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266,
272 (3d Cir. 2012)(quoted case omitted). Defendants would apply the standard used in
Detz v. Greiner Industries, Inc., 346 F.3d 109 (3d Cir. 2003)(quoting Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795, 807 (1999)). That standard would require Plaintiff to
explain any inconsistency between her position in this case and one she might have
taken in her worker’s compensation case. However, Detz is distinguishable because the
standard the court employed there was applied when the plaintiff had succeeded in
having a court or agency accept the position inconsistent with the one now being
presented and the plaintiff was benefitted by that acceptance. Detz, 346 F.3d at 117-18
& 118 n.2. In this case, Plaintiff did not prevail (and hence did not benefit from her
statements) in her worker’s compensation case, at least at the time of Defendants’
summary judgment motion, since her application had been denied. (Doc. 91, Defendants’
statement of material fact ¶ 108, citing Doc. 91-34).
In these circumstances, the “traditional three step ‘judicial estoppel’
approach” is employed. Detz, 346 F.3d at 117 & 118 n.2. Under that approach:
Judicial estoppel may be imposed only if: (1) the party to be
estopped is asserting a position that is irreconcilably
inconsistent with one he or she asserted in a prior
proceeding; (2) the party changed his or her position in bad
faith, i.e., in a culpable manner threatening to the court's
authority or integrity; and (3) the use of judicial estoppel is
tailored to address the affront to the court's authority or
Montrose Med. Grp. Participating Saving Plan v. Bulger, 243 F.3d 773, 777 (3d Cir.
2001). Defendants have not employed this traditional standard, so we are reluctant to
rule on their judicial estoppel claim at this time.
Based on the foregoing, we will vacate our order granting summary
judgment on: (1) the discharge claims under the Equal Protection Clause of the
Fourteenth Amendment, Title VII, and PHRA; and (2) the retaliation claim. We will deny
Plaintiff’s motion to vacate our order on: (1) the quid pro quo claim; (2) the defamation
claim; and (3) the equal pay claim.6
/s/William W. Caldwell
William W. Caldwell
United States District Judge
Date: January 11, 2018
Plaintiff requested oral argument, but we see no need for oral argument, so we will
deny this request.
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