Raskauskas v. Commonwealth of Pennsylvania Turnpike Commission

Filing 16

MEMORANDUM re MOTION for Summary Judgment 10 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 9/23/15. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

PATRICIA A. RASKAUSKAS,
Plaintiff
v.
COMMONWEALTH OF
PENNSYLVANIA TURNPIKE
COMMISSION,
Defendant

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: CIVIL NO. 1:14-CV-01344
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MEMORANDUM

I.

Introduction
In this matter, plaintiff, a female, claims that the defendant failed to hire her,

because of her sex, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. §§ 2000e et seq. and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.
Stat. Ann. §§ 951 et seq. Currently pending is defendant‟s motion for summary judgment
that we will grant. (Doc. 10.).
II.

Background
On July 14, 2014, plaintiff initiated this lawsuit by filing a complaint consisting

of the following three counts: Count I – sex discrimination in violation of Title VII; (2) Count
II - age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) of
1967, 29 U.S.C. § 621 et seq.; and Count III – sex and age discrimination in violation of
the PHRA. (Doc. 1). Plaintiff has since stated her intent to withdraw Count II in its entirety
along with a portion of Count III, all relating to her claims of age discrimination. (Doc. 13
at 2, 10). Accordingly, those claims will be deemed withdrawn. With respect to the

remaining claims in Counts I and III, currently pending is the defendant‟s motion for
summary judgment. (Doc. 10). The relevant material facts are as follows:
On August 3, 1994, defendant hired plaintiff, a female, as a workers‟
compensation manager. (Doc. 12 at ¶ 1). During plaintiff‟s employment with the
defendant, she regularly received annual salary increases based on her performance
evaluations. (Id. at ¶ 4). In December 2006, plaintiff‟s supervisor, who had the job title of
“Risk Manager” and also oversaw the worker‟s compensation claims unit, retired. (Doc.
12-1 at 8-9). Plaintiff then sought to become the Risk Manager; however, she was
informed that the defendant was doing away with the job title, but that her title would
eventually be changed. (Id.). Thereafter, on or about December 18, 2008, plaintiff‟s job
title was changed to “Manager of Workers‟ Compensation and Property Claims” and her
salary increased. (Doc. 12 at ¶¶ 5-6, 16; see Doc. 12-1 at 16-17). Moreover, plaintiff‟s job
description changed. (See Doc. 12-1 at 10). As part of her new job description, plaintiff
reached outside the area of workers‟ compensation, becoming involved in “risk
management” duties and property appraisals. (Id. at 17-18; see Doc. 13-3 at ¶ 7; see
also, Doc. 12-2 at 23, 25). According to plaintiff, she had actually been performing riskmanagement duties since 2006. (See id.). Also, during her tenure with the defendant,
plaintiff had supervised four employees. (Doc. 12 at ¶ 9).
On July 20, 2010, plaintiff submitted a resignation letter to her supervisor,
Nicholas Grieshaber (“Grieshaber”), who was also the defendant‟s Chief Financial Officer,
advising that she would be resigning effective January 13, 2011, and that she would
thereafter begin retirement. (Doc. 12 at ¶¶ 7, 10). Plaintiff chose to retire because of her
age and because her job title had not been changed to Risk Manager as she had been

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requesting while employed by the defendant. (Doc. 12 at ¶ 14; Doc. 12-1 at 5, 15-16).
Plaintiff believed that her position should have been reclassified because of how her job
had evolved during the later years of her employment with defendant.
Following her resignation, plaintiff began working for ACS Claims Service as
a claims adjuster. (Doc. 12-1 at 2). In that capacity, plaintiff did not supervise any
employees and had no work responsibilities beyond the area of workers‟ compensation
insurance. (Id. at 3; see Doc. 12 at ¶ 40). Additionally, following plaintiff‟s resignation, the
defendant employed Paige Kerstetter (“Kerstetter”) to fill plaintiff‟s position. (Doc. 12-1 at
45). Kerstetter, a female, possessed an Associate‟s Degree and had approximately 11
years of experience in the insurance industry. (Doc. 12 at ¶ 24). Not long after Kerstetter
accepted the position with defendant as “Manager of Workers‟ Compensation and Property
Claims,” the title for said position was changed to Risk Manager. (See id. at ¶ 25). This
change did not impact her salary. (Id.) Shortly after changing the job title, however, the
defendant issued a new job description and instituted new requirements for the position.
(Id. at ¶ 26). Specifically, the defendant required the individual holding the Risk Manager
position to possess a Bachelor‟s degree in Business Administration, Health Policy and
Administration or have any equivalent combination of experience, education and training.
(Id. at ¶ 27). As well, the minimum requirements were as follows:
Six years of experience in insurance and / or claims management, with
three (3) years in a supervisory capacity, or any equivalent combination
of experience, education and training. Must possess general insurance
and claims processing methods knowledge. Must have a thorough
understanding of risk management theories for identification and
financing of loss exposure and loss control. Must possess knowledge of
workers‟ compensation law, contract law, litigation procedures, and
medical terminology. The ability to manage outside, independently
owned organizations without having direct control over their operations is
essential. Must be able to communicate with a broad spectrum of
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internal as well as external individuals and groups. Must be able to
communicate and write in English and perform basic math.
(Doc. 12-2 at 5). Among other duties and responsibilities, the Risk Manager would also
participate in the real estate appraisal process, “[c]oordinate[] the approval of engineering
insurance certificates with outside insurance consultants,” and oversee the defendant‟s
insurance programs. (Id. at 5, 6).
Six days after the defendant approved the job description and instituted the
new requirements for the Risk Manager position, Kersetter advised that she was resigning.
(Doc. 12 at ¶ 30). The defendant then advertised the Risk Manager position, requiring
interested applicants to provide a résumé and salary requirements to the Director of Human
Resources by December 23, 2011. (Id. at ¶ 31).
Pursuant to the defendant‟s procedures for posting and filling this type of
position, Human Resources was required to review all applications and résumés received
for the position in order to determine whether applicants met the minimum qualifications and
requirements. (Doc. 12-2 at 16). Thereafter, Human Resources was required to create a
“Promotion Application Log” to be sent to the “Department Head,” following the vacancy
posting period and qualification process. (Id.). Said Log was to include the qualification
status of applicants as well as their designation as internal or external applicants.1 (Id.).
After receiving the Log, the Department Head was to convene an interview panel approved
by Human Resources, to include at least three members, two being within the specific
department and one outside the department. (Id.). All qualified internal candidates were

1

We understand the term “internal applicant” to be defined as an individual who is already
employed by the defendant at the time an application is submitted. Conversely, we understand the
term “external applicant” to be defined as an individual who is not already employed by the
defendant when an application is submitted. Our ruling herein, however, is not contingent upon our
understanding of these terms.
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required to be interviewed and qualified external applicants were to be scheduled for an
interview at the discretion of the department. (Id.). Following the interview process, the
interview panel was required to determine the candidates to be recommended to Human
Resources.

(Id. at 16-17).

Human Resources would then submit the panel‟s

recommendations to the Administration Committee for final approval of the candidates and
salaries. (Id. at 17).
On November 23, 2011, plaintiff, who only possessed a high school diploma,
applied for the Risk Manager position. (Doc. 12 at ¶¶ 38-39). According to plaintiff, she
applied for the job because of its title, the functions and duties of which she believed that
she had been performing while previously employed by the defendant. (See Doc. 12-1 at
21).
In total, 20 applicants, including plaintiff, were included on the Log that
Human Resources was required to create. (Doc. 12 at ¶ 42). Fourteen of those applicants
were males and six were females. (Id.). Of those 20, seven were selected for interviews:
two females and five males.

(Id. at ¶ 43).

Although plaintiff was listed as a qualified

applicant, she was not selected for an interview because the panel was familiar with plaintiff
as well as her job qualifications and capabilities. (Id. at ¶ 44; Doc. 12-2 at 29; Doc. 12-3 at
10).

Similarly, eight other “qualified” candidates, six males and two females, were not

selected for interviews. (See Doc. 12 at ¶ 43; Doc. 12-2 at 29-30).
Ultimately, on February 27, 2012, the defendant hired Bryan Schmitt
(“Schmitt”), a male, for the Risk Manager position. (Doc. 12 at ¶ 47). Schmitt held a
Master‟s Degree in Business Administration from Pennsylvania State University and a
Bachelor‟s Degree in Accounting from Villanova University.

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(Id. at ¶ 48).

In addition,

Schmitt had risk management experience dating back to 1997, and his immediately prior
position was Assistant Director, Risk Management for a multi-national corporation. (Id. at ¶
49). Schmitt, though, resigned from the Risk Manager position on April 23, 2012. (Doc. 123 at 22).
Following Schmitt‟s resignation, the defendant did not re-post, or advertise,
the vacant position.

The defendant, instead, proceeded to re-interview John Callahan

(“Callahan”), an applicant and interviewee who had received high ratings during the first
hiring round, for the Risk Manager position. (See Doc. 12-3 at 10, 24-26; see also, Doc. 14
at 8-9, 10-11). On June 8, 2012, defendant hired Callahan, a male, as its Risk Manager.
(Doc. 13-1 at ¶ 52). Callahan had a Bachelor‟s Degree in Business Administration from
Temple University, had previously served as the Director of Risk Management from 2007 to
2011 for a private corporation, and served for 20 years as a risk manager for a municipal
gas utility. (Doc. 12 at ¶¶ 53-54). Callahan‟s employment with the defendant ended on
February 18, 2015. (See id. at ¶ 55).
III.

Discussion
A. Standard of Review
Summary judgment is proper where “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). In making this evaluation, all doubts as to the existence of a
genuine issue of material fact must be resolved against the moving party, and the entire
record must be examined in the light most favorable to the nonmoving party. MacFarlan v.
Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012).

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“[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986). “Material facts are those „that could affect the outcome‟
of the proceeding, and „a dispute about a material fact is genuine if the evidence is
sufficient to permit a reasonable jury to return a verdict for the nonmoving party.‟” Roth v.
Norfalco, 651 F.3d 367, 373 (3d Cir. 2011) (citing Lamont v. New Jersey, 637 F.3d 177,
181 (3d Cir. 2011)). “[S]ummary judgment is essentially „put up or shut up‟ time for the
non-moving party: the non-moving party must rebut the motion with facts in the record and
cannot rest solely on assertions made in the pleadings, legal memoranda, or oral
argument.” Berckeley Inv. Group, Ltd. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). The
moving party has the burden of showing the absence of a genuine issue of material fact,
but the nonmoving party must present affirmative evidence from which a jury might return
a verdict in the nonmoving party's favor. Liberty Lobby, 477 U.S. at 256–57. “The nonmoving party cannot rest on mere pleadings or allegations,” El v. Southeastern Pa.
Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but “must set forth specific facts showing
that there is a genuine issue for trial.” Saldana v. Kmart Corp., 260 F.3d 228, 231–232 (3d
Cir. 2001). Allegations made without evidentiary support may be disregarded. Jones v.
UPS, 214 F.3d 402, 407 (3d Cir. 2000). “Conclusory, self-serving affidavits are insufficient
to withstand a motion for summary judgment.” Blair v. Scott Specialty Gases, 283 F.3d
595, 608 (3d Cir. 2002). The non-moving party must raise “more than a mere scintilla of
evidence in its favor” in order to overcome a summary judgment motion. Williams v.
Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

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B.

Sex Discrimination.

In Count I, plaintiff complains that the defendant failed to hire her for the Risk
Manager position that was established after she retired, because of her sex, in violation of
Title VII.2 Under Title VII, it is unlawful for an employer to discriminate against any
individual because of the individual's sex. 42 U.S.C. § 2000e–2(a). In addressing the type of
claim raised by plaintiff under Title VII in this lawsuit, we must apply the “familiar” McDonnell
Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). Under this burden-shifting framework:
[T]he employee must first establish a prima facie case. If the employee is
able to present such a case, then the burden shifts to the employer to
provide a legitimate, nondiscriminatory reason for its adverse
employment decision. If the employer is able to do so, the burden shifts
back to the employee, who, to defeat a motion for summary judgment,
must show that the employer's articulated reason was a pretext for
intentional discrimination.
Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008); see Lindsay v. Pa.
State Univ., No. 4:06–1826, 2009 WL 691936 at *5 (M.D. Pa. Mar.11, 2009) (McClure, J.).3

2

The PHRA is construed consistently with interpretations of Title VII. See Ildefonso v. City of
Bethlehem, No. 11-4033, 2012 WL 2864423, *2 (E.D. Pa. July 12, 2012) (citing Wilkerson v. New
Media Tech. Charter Sch., Inc., 522 F.3d 315, 318–19 (3d Cir. 2008)); see also, Fogleman v. Mercy
Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)
(“[w]hile the Pennsylvania courts are not bound in their interpretations of Pennsylvania law by
federal interpretations of parallel provisions in Title VII . . . [Pennsylvania] courts nevertheless
generally interpret the PHRA in accord with its federal counterparts.” (citations omitted)); Smith v.
Pathmark Stores, No. 97-1561, 1998 WL 309916, *3 (E.D. Pa. June 11, 1998) (“courts have
uniformly interpreted the PHRA consistent with Title VII” (citations omitted)). The same ruling with
respect to plaintiff‟s Title VII claim, therefore, will apply to her PHRA claim in Count III, partially
premised upon sex discrimination.
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We emphasize that in the employment-discrimination context, “the burden of persuasion on
summary judgment remains unalterably with the employer as movant.” Doe v. C.A.R.S. Protection
Plus, Inc., 527 F.3d 358, 362 (3d Cir. 2008). Therefore, “[t]he employer must persuade [the Court]
that even if all of the inferences which could reasonably be drawn from the evidentiary materials of
record were viewed in the light most favorable to the plaintiff, no reasonable jury could find in the
plaintiff's favor.” Id. (citing Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200, 201–02 (3d Cir.
1987)).
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In order to establish a prima facie claim of discrimination under Title VII in
the failure-to-hire context, a complainant must show the following elements: (1) she is a
member of a protected class; (2) she was qualified for the position sought; (3) she was
rejected despite being qualified; and (4) under circumstances that raise an inference of
discriminatory action. Waris v. Heartland Home Healthcare Services, Inc., 365 F. App‟x
402, 404 (3d Cir. 2010) (per curiam) (non-precedential) (citing Sarullo v. U.S. Postal Serv.,
352 F.3d 789, 797 (3d Cir. 2003)). Stated differently, “[a]t the prima facie stage, a plaintiff
must present evidence that „establish[es] some causal nexus between [his or her]
membership in a protected class and the decision not to [hire him or her].‟” Nunn v. NHS
Human Services, Inc., No. 13-3140, 2015 WL 3604164, at *7 (E.D. Pa. June 9,
2015)(quoting Sarullo, 352 F.3d at 798).
The defendant concedes that plaintiff can satisfy the first three elements of a
prima facie case of discrimination, but not the fourth. (Doc. 11 at 12). To establish this
fourth element, plaintiff must show that the adverse employment action, i.e., the failure to
hire, was made “under circumstances that give rise to an inference of unlawful
discrimination.” Waldron v. SL Industries, Inc., 56 F.3d 491, 494 (3d Cir. 1995). Plaintiff
may satisfy this element by demonstrating that defendant filled the Risk Manager position
by selecting someone of lesser or equivalent qualifications who was not a member of
plaintiff's protected class. See Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 540–41 (3d Cir. 2006) (noting that, in order to establish a prima facie
case of discrimination, courts should look to the hiring decision to determine if plaintiff was
at least as qualified as the person selected for the position, not necessarily better qualified
than that person) (citing Pinckney v. Cnty. of Northampton, 512 F.Supp. 989, 998 (E.D. Pa.

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1981), aff'd 681 F.2d 808 (3d Cir. 1982)); Rodriguez v. Nat'l R.R. Passenger Corp., No. 11–
0043, 2012 WL 2343306, at *7 (E.D. Pa. June 20, 2012) (DuBois, J.) (concluding that
plaintiff failed to establish the fourth prong of the prima facie case as, inter alia, he could not
show that he was at least as qualified as the person who was hired).
Based on the evidence presented at this stage, viewed in the light most
favorable to plaintiff, we agree with defendant that plaintiff cannot establish a prima facie
case of sex discrimination. Indeed, it is readily apparent from the undisputed evidence that
plaintiff was not as qualified as Callahan or Schmitt, who each possessed college degrees
and had noticeably more, relevant, work experience. (See also, Doc. 12-3 at 16, 19-20, 3335). That Callahan and Schmitt did not have long tenures with the defendant does not
permit an inference that plaintiff was as qualified as they were. Other factors could have
come into play after Callahan and Schmitt each took on the position as Risk Manager. Also,
the defendant did not require applicants to have prior experience working for it as a
minimum qualification for the position. Moreover, plaintiff relies upon insufficient, and
largely uncorroborated, evidence in an attempt to show that sexual discrimination
permeated the workplace. Further, to the extent it is relevant, the undisputed evidence
presented demonstrates that two females were selected for interviews during the round
when Schmitt was eventually hired as Risk Manager, and, during the round when Callahan
was hired, plaintiff does not point to evidence in the record demonstrating any hint of
discriminatory animus that could be attributed to the defendant. A reasonable juror, thus,
could not find in plaintiff‟s favor on her claim of sex discrimination since she has not
demonstrated a prima facie case.4
4

We do not view plaintiff‟s complaint as encompassing a claim of sexual harassment because
of a hostile work environment, (Cf. Doc. 1 at ¶¶ 30-31), and it is axiomatic that a complaint cannot be
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IV.

Conclusion
Since plaintiff cannot make out a prima facie case of sex discrimination

under Title VII or the PHRA, summary judgment will be entered in favor of the defendant on
Counts I and III, the only claims plaintiff has continued to pursue. An appropriate Order will
be issued.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge

amended through a brief. See Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173 (3d
Cir. 1988).
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