Gula v. Noonan et al

Filing 98

MEMORANDUM (Order to follow as separate docket entry) re 34 MOTION for Partial Summary Judgment filed by Anthony J. O'Hara, Richard L. Krawetz, David Dougalas, Lisa Brogan, Edward Hoke.Signed by Honorable Malachy E Mannion on 12/8/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CARRIE ANN GULA,

:

Plaintiff

:
:

v.
FRANK NOONAN,
et al.,

CIVIL ACTION NO. 3:14-2210
(JUDGE MANNION)

:
:

Defendants
MEMORANDUM
This is a civil rights action brought pursuant to 42 U.S.C. §1983, Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., and
the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.C.S.A. §951, et seq.,
by plaintiff, Carrie Ann Gula (“Gula”), in which she alleges violations of her
constitutional rights arising out of her employment with the Pennsylvania State
Police (“PSP”) and an alleged assault incident between Gula and her
boyfriend on August 1, 2012.
Presently pending is the partial motion for summary judgment motion of
defendants Brogan, Krawetz, O’Hara, Captain David Dougalas (“Dougalas”),
Major Edward Hoke (“Hoke”), and the PSP, pursuant to Fed. R. Civ. Pro. 56,
regarding Counts I, III, IV, V, VI, VII, and VIII of the plaintiff’s amended
complaint, (Doc. 19).1 (Doc. 34).

1

On November 9, 2017, the court granted the partial motion for
summary judgment of defendants Brogan, Krawetz and O’Hara regarding

Based upon the following discussion, the Doc. 34 partial motion for
summary judgment will be DENIED IN ITS ENTIRETY.

I.

PROCEDURAL HISTORY
Gula is proceeding on her amended complaint under §1983, Title VII

and the PHRA which was filed on August 29, 2016. (Doc. 19). The plaintiff’s
amended complaint raises eight counts, to wit: (1) First Amendment retaliation
claim and Fourteenth Amendment equal protection claim based on her sex
against the individual defendants2 in violation of 42 U.S.C. §1983; (2)
malicious prosecution claim in violation of the Fourth Amendment and §1983
against Krawetz, and Brogan; (3) sex discrimination claim under Title VII
against PSP; (4) sex discrimination claim against all defendants under the
PHRA; (5) hostile work environment claim based on sex under Title VII
against PSP; (6) hostile work environment claim based on sex against all
defendants under the PHRA; (7) retaliation claim under Title VII against PSP;
and (8) retaliation claim against all defendants under the PHRA.
Counts IV, VI and VIII of Gula’s amended complaint, i.e., her claims under the
PHRA for sex discrimination, hostile work environment based on sex and
retaliation, to the extent Gula sought to hold these three defendants
individually liable. (Doc. 31). The court also dismissed with prejudice Gula’s
PHRA claims against the PSP. (Doc. 97). Also on that date, the court denied
the partial motion for summary judgment of Brogan and Krawetz with respect
to Gula’s §1983 malicious prosecution claim, Count II. (Doc. 95).
2

The remaining individual defendants are Krawetz, Brogan, Dougalas,
Hoke, and O’Hara.
2

On March 22, 2017, Brogan, Krawetz, O’Hara, Dougalas, Hoke, and the
PSP filed a partial motion for summary judgment motion, pursuant to Rule 56,
regarding Counts I, III, IV, V, VI, VII, and VIII of the plaintiff’s amended
complaint. (Doc. 34). They simultaneously filed their statement of facts with
exhibits and a brief in support. (Doc. 35, Doc. 36, Docs. 37-63). The plaintiff
filed her brief in opposition to the Doc. 34 motion and her response to their
statement of facts on May 10, 2017. (Doc. 86, Doc. 87). Plaintiff filed exhibits
in support of her brief. (Docs. 76-83). Defendants filed a reply brief on June
7, 2017. (Doc. 91). Their Doc. 34 motion is now ripe for disposition by the
court.
This court has jurisdiction over Gula’s federal claims pursuant to 28
U.S.C. §1331 and §1343 as well as 42 U.S.C. §2000e–5(f)(3). The court can
exercise pendent jurisdiction over the state law claims under 28 U.S.C.
§1367. Venue is proper in this court under 28 U.S.C. §1391.

II.

MATERIAL FACTS
The court incorporates by reference the material facts of this case from

its November 9, 2017 Memoranda, (Doc. 94, Doc. 96).3

3

The additional material facts are derived from defendants’ statement
of material facts, (Doc. 35), from plaintiff’s responses thereto, (Doc. 86), as
well as the exhibits submitted by the parties. Also, the court limits its
discussion to the material facts pertaining to the Doc. 34 summary judgment
motion. The court has omitted any legal conclusions from the material facts.
With respect to defendants’ summary judgment motion, the court views the
3

At all relevant times, Gula was an employee of the PSP. She was a PSP
Trooper assigned to the Patrol Section at the Trevose Barracks, Troop M,
from August 2009 until October 29, 2011. (Doc. 84, Ex. 9). While at the
Trevose Barracks, Gula filed a complaint with the PSP alleging that she was
being sexually harassed by PSP Trooper Donald C. Brackett, who was also
assigned to that barracks. As a result of Gula’s complaint, an internal affairs
investigation (“IAD”) was initiated in August 2010 which focused on Brackett
(“Brackett IAD”), IAD 2010-05726, and his alleged harassment of Gula.
Brogan, Hoke, Krawetz and Dougalas were not aware of the Brackett IAD
prior to the filing of the instant action.
Additionally, when Gula was stationed at the Trevose Barracks, she
provided statements in other IAD investigations which were conducted at the
Trevose Barracks. Brogan, Hoke, Krawetz and Dougalas were not aware that
Gula had made statements in other IAD investigations at the Trevose
Barracks. O’Hara testified that he reviewed prior IADs involving Gula when he
was investigating the false report misconduct charges against Gula. He
reviewed the Brackett IAD, the Joyce Knoll IAD, and the Greener case, all of
which involved allegations of sex discrimination in which Gula was listed as
a witness.

facts in the light most favorable to plaintiff. See Hampden Real Estate, Inc. v.
Metropolitan Management Group, Inc., 142 Fed.Appx. 600, 602 (3d Cir.
2005).
4

On October 29, 2011, Gula received a hardship transfer to Troop N,
Fern Ridge Barracks, in Monroe County, PA, where she was assigned to
patrol under the supervision of Station Commander Sean Jennings.
Gula’s former supervisor at Trevose Barracks issued a report finding
that she was subjected to sexual harassment by Brackett. On July 18, 2012,
a Department Disciplinary Officer (“DDO”) issued misconduct charges against
Brackett, namely, Unbecoming Conduct, Discrimination or Harassment,
Sexual Impropriety, Performance of Duty, Use of Equipment and Property.
Gula’s claims of sexual harassment were then sustained by the PSP. Brackett
was disciplined and he received a 15-day Suspension Without Pay (“SWOP”)
in July 2012. Brackett filed a grievance regarding the SWOP and it was
reduced eight days. Also, the charge of sexual impropriety was removed from
his record based on his grievance.
Gula’s evidence, (Doc. 86 at 2), also shows as follows:
As of August 2012, Gula was the only female in her barracks at
Fern Ridge. Of the handful female members of Troop M, Gula’s
Troop, two were subject to a court martial in recent years: Andrea
Young and Carrie Gula. (Exhibit 13; Exhibit 71). Both Young and
Gula’s court martials were overturned through arbitration and they
were awarded back pay. (Id.). Both Young and Gula have
subsequently been promoted to the rank of Corporal. (Exhibits 11,
13).
In August of 2012, Gula remained stationed in Troop M, at the Fern
Ridge Barracks. On August 2, 2012, Gula reported to Jennings that she was
assaulted in her uniform by her boyfriend, Eric Thomas, on August 1, 2012,
5

in his house in Luzerne County, PA. Jennings contacted the Troop
Headquarters and talked to Lieutenant Brian Tobin and Dougalas, and he was
advised to make a report to Troop P, Wyoming.
On August 8, 2012, Jennings also sent an email summary of his August
2 meeting with Gula to his supervisors, Hoke and Dougalas. The Criminal
Investigation Unit at Troop P, PSP Wyoming, in Luzerne County, was then
assigned to investigate Gula’s alleged domestic assault incident. Jennings
told Gula to report to Krawetz, Commander of the Criminal Section at PSP
Wyoming. Krawetz then directed Brogan to investigate Gula’s assault
allegations. As part of her investigation, Brogan told Gula to make a written
statement regarding her allegations on August 2, 2012. Jennings was never
interviewed by Krawetz or Brogan regarding Gula’s allegations. On August 7,
2012, Brogan and Krawetz determined that Gula’s domestic violence
allegations were “unfounded.” On August 8, 2012, Krawetz entered a Blue
Team Entry into PSP’s internal affairs reporting system indicating that there
was an allegation of misconduct by Gula, namely, the filing of false reports.
Krawetz did not determine the outcome of the Blue Team Entry. Rather, he
only reported the alleged misconduct by Gula and the fact that he initiated a
criminal investigation into Gula for the crime of false reports regarding her
assault allegations against Thomas. Also, during the course of the
investigation into the alleged assault incident Gula had reported, Thomas
claimed that Gula had “illegally accessed his ‘My Verizon’ online account.”
6

Thus, on August 8, 2012, Krawetz commenced a criminal investigation
regarding Gula for computer crimes in addition to false reports. (Doc. 40 at
76).
On August 9, 2012, Dougalas placed Gula on restricted duty status
pending the outcome of the criminal and internal affairs investigations
regarding her alleged false statements. Upon conclusion of the investigations,
the PSP and its officials determined that Gula should be criminally charged
with making false statements to law enforcement officials and for computer
trespass crimes.
In November 2012, Krawetz met with members of the Luzerne County
DA’s Office and gave them a copy of his criminal investigation into Gula. On
December 4, 2012, the DA approved of criminal charges and, Krawetz filed
the criminal complaint against Gula on December 13, 2012. Also, a felony
arrest warrant for Gula was obtained by Krawetz from Magisterial District
Judge Joseph J. Carmody. (Doc. 81-6, Doc. 81-7).
Further, on December 13, 2012, Gula was suspended without pay by
Hoke. The PSP is required under the Confidence In Law Enforcement Act
(“CILEA”) to suspend any members who are charged with crimes that can
result in prison sentence of one year or greater.
After obtaining the arrest warrant, Krawetz arrested Gula and took her
into custody at PSP Hazleton. Gula was charged with the following crimes:
Unlawful Use of Computer; Computer Trespass; Criminal Use of
7

Communication Facility; False Report-Falsely Incriminate Another; False
Reports–Reported Offense Did Not Occur; Unsworn Falsification to
Authorities. See the docket sheet for the Court of Common Pleas of Luzerne
County, Case No. CP-40-CR-0001057-2013, Commonwealth v. Carrie Ann
Gula.4 (Doc. 81-7, Doc. 55-1). She was then arraigned and released on
unsecured bond.
On December 4, 2012, Gula complained to Jennings, the Fern Ridge
station commander, regarding alleged constituted harassment. Jennings
decided Gula’s complaints of harassment warranted a Blue Team Entry report
which he issued. (Doc. 53 at 86, 88). Jennings informed his supervisors,
including Hoke, that he issued the Blue Team Entry regarding the alleged
inappropriate conduct directed toward Gula by male troopers in the Fern
Ridge Barracks. As such, an Internal Affairs Investigation, number IAD
2012-0811, was commenced in December 2012.
On December 10, 2012, Hoke sent an email with the subject “Carrie
Gula” to Captain Degnan, Commanding Officer of Troop P Wyoming, with a
copy to Robert Bartal, the investigator for Jennings’s Blue Team Entry. This
was sent at the time that Troop P was investigating the domestic violence
incident alleged by Gula.
4

Gula’s Luzerne County Criminal Docket for case number
CP-40-CR-0001057-2013 can be found at http://ujsportal.pacourts.us. The
court takes judicial notice of Gula’s Luzerne County Criminal Docket as an
official state court record.
8

On December 12, 2012, IAD of the PSP interviewed Gula regarding the
Blue Team Entry filed by Jennings pertaining to the harassment she was
allegedly experiencing. Hoke indicated that he spoke with the person who
interviewed Gula that day. Later on December 12, 2012, Krawetz met again
with the Luzerne County DA with respect to the Gula criminal investigation.
As indicated, the next day Gula was arrested on criminal charges.
On March 27, 2013, Gula had her preliminary hearing with respect to
her the criminal charges, (Doc. 81-8), and the charges were bound over to
county court for trial.
Gula’s criminal trial commenced on March 17, 2014. (Doc. 81-12). Prior
to trial, the ADA withdrew Count 1, Unlawful Use of Computer and Count 3,
Computer Trespass. (Doc. 81-13). At the conclusion of the trial, the jury found
Gula not guilty of all remaining charges.
On March 21, 2014, Gula was placed on restricted duty by Lieutenant
Daniel J. Gentile, Jr. pending the outcome of the internal affairs investigation
into her alleged false reports. Gula was then disciplined for providing false
information to investigators regarding the alleged domestic violence incident.
On June 11, 2014, a Disciplinary Action Report (“DAR”) was issued to
Gula charging her with the following violations of field regulations:
Unbecoming Conduct; Conformance to Laws; Internal Investigations; and
Providing False Information.
On September 24, 2014, PSP brought administrative charges relating
9

to false statements which notified her that she was to be dismissed from the
PSP, and would be placed in a suspension without pay status pending the
filing of any grievance by her.
On September 25, 2014, a memo was issued indicating that the PSP
decided to court martial Gula. Lt. Col. George Bivens approved Gula’s court
martial on September 30, 2014.
Subsequently, Gula successfully pursued a grievance against the PSP
through arbitration. The arbitration award dated March 16, 2015 sustained
Gula’s grievance regarding her court martial and the arbitrator found that the
Commonwealth failed to show just cause for Gula’s termination by clear and
convincing evidence. However, Gula remained on suspension without pay
until the award was issued. Gula was then reinstated to her position as a
trooper with the PSP with all the entitlements of employment, including back
pay for the period of suspension imposed pursuant to the CILEA.

III.

STANDARD OF REVIEW
Summary judgment is appropriate if the “pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v.
Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute
10

is genuine if a reasonable jury could find for the non-moving party, and is
material if it will affect the outcome of the trial under governing substantive
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna
Casualty & Sur. Co. v. Ericksen, 903 F. Supp. 836, 838 (M.D. Pa. 1995). At
the summary judgment stage, “the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Anderson, 477 U.S. at 249 ; see also Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh
the evidence or make credibility determinations). Rather, the court must
consider all evidence and inferences drawn therefrom in the light most
favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d
Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively
identify those portions of the record which demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party
can discharge the burden by showing that “on all the essential elements of its
case on which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.
2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial
burden, the non-moving party “must do more than simply show that there is
some metaphysical doubt as to material facts,” but must show sufficient
evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,
11

139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986)). However, if the non-moving party
“fails to make a showing sufficient to establish the existence of an element
essential to [the non-movant’s] case, and on which [the non-movant] will bear
the burden of proof at trial,” Rule 56 mandates the entry of summary judgment
because such a failure “necessarily renders all other facts immaterial.”
Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman La Roche, Inc., 485
F.3d 770, 777 (3d Cir. 2007).
“The motion for summary judgment requires Plaintiff to present evidence
that there does exist a genuine issue of material fact, and Plaintiff may not
rely solely on the pleadings.” Isajewicz v. Bucks County Dept. Of
Communications, 851 F.Supp. 161, 165 (E.D.Pa. 1994) (citing Celotex, 477
U.S. at 322).
As to a hostile work environment claim, the plaintiff must show that “1)
the employee suffered intentional discrimination because of his/her sex, 2) the
discrimination was severe or pervasive, 3) the discrimination detrimentally
affected the plaintiff, 4) the discrimination would detrimentally affect a
reasonable person in like circumstances, and 5) the existence of respondeat
superior liability.” Mandel v. M&Q Packaging Corp., 706 F.3d 157, 167 (3d Cir.
2013). Any finding regarding the hostility of a work environment “must be
determined by the totality of the circumstances.” Fichter v. AMG Resources
Corp., 528 F.App’x 225, 230 (3d Cir. 2013). Put another way, “the workplace
12

must have been ‘permeated with discriminatory intimidation, ridicule, and
insult that [was] sufficiently severe or pervasive to alter the conditions of [her]
employment and create an abusive work environment...” McSparran v.
Pennsylvania, 2014 WL 1371594 (M.D.Pa. 2014) (citing Fichter, 528 F.App’x
225).

IV.

DISCUSSION
With respect to the instant motion, (Doc. 34), Gula essentially claims

that she was improperly criminally charged and suspended without pay by the
PSP defendants as retaliation for her complaint of sexual harassment against
Brackett, for giving statements in other IAD investigations, and for her
complaints of a hostile work environment at the Fern Ridge Barracks in
violation of the First Amendment, Title VII and the PHRA. She also claims that
the PSP defendants unlawfully discriminated against her based on her gender
and created a hostile work environment in violation of both Title VII and the
PHRA.
In Count I of her amended complaint, Gula raises a First Amendment
retaliation claim against all defendants under §1983. In Count VII, Gula
asserts a claim against the PSP for unlawful retaliation in violation of Title VII
and, in Count VIII, she asserts a retaliation claim against all defendants under
the PHRA. As mentioned, the court has previously granted the motion for
partial summary judgment of Krawetz, Brogan and O’Hara with respect to all
13

of Gula’s PHRA claims, Counts IV, VI and VIII. The court has also dismissed
with prejudice all of Gula’s PHRA claims against the PSP since they are
barred by the Eleventh Amendment. (Doc. 97). Thus, Gula’s First Amendment
retaliation claim against all defendants, Count I, remains. Also remaining are
Gula’s retaliation claim under Title VII against PSP, Count VII, as well as her
retaliation claim under the PHRA against Dougalas and Hoke, in their
individual capacity, Count VIII.
A. Count I, First Amendment Retaliation Claim
In Count I, Gula asserts a First Amendment retaliation claim under 42
U.S.C. §1983 against Brogan, Krawetz, O’Hara, Dougalas and Hoke, in their
individual capacity.
To state a claim under §1983, a plaintiff must meet two threshold
requirements. She must allege: 1) that the alleged misconduct was committed
by a person acting under color of state law; and 2) that as a result, she was
deprived of rights, privileges, or immunities secured by the Constitution or
laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels
v. Williams, 474 U.S. 327, 330-331 (1986). “A defendant in a civil rights action
must have personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.” Rode v.
Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). See also Sutton v.
Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (citing Rode). “Personal
14

involvement can be shown through allegations of personal direction or of
actual knowledge and acquiescence.” Rode, 845 F.2d at 1207.
In order to establish a First Amendment retaliation claim, a public
employee must show: (1) that his or her speech is protected by the First
Amendment; and (2) that the speech was a substantial or motivating factor of
the employer’s retaliatory action(s). Flora v. County of Luzerne, 776 F.3d 169,
174 (3d Cir. 2015) (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.
2009)). “The first factor is a question of law; the second factor is a question
of fact.” Gorum, 561 F.3d at 184 (quoting Hill v. Borough of Kutztown, 455
F.3d 225, 241 (3d Cir. 2006)). If these two elements are established, the
burden shifts to the employer to show that it would have taken the same
action regardless of the speech. Flora, 776 F.3d at 174.
“The [Supreme] Court has made clear that public employees do not
surrender all their First Amendment rights by reason of their employment.
Rather, the First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). If public employees speak in
the course of their employment, “the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Id. at 421. However, if an

15

employee speaks as a citizen on a matter of public concern, “[t]he question
becomes whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of the
general public.” Id. at 418.
“[T]he question of whether a particular incident of speech is made within
a particular plaintiff’s job duties is a mixed question of fact and law.” Foraker,
501 F.3d at 240. The majority approach has interpreted this language to mean
that “the ultimate question of whether speech is made pursuant to a public
employee’s official duties is a question for the Court to decide, whereas the
question of whether certain factual circumstances exist is a question
amenable to resolution by a jury.” Baranowski v. Waters, 2008 WL 4000406,
at *19 (W.D.Pa. Aug. 25, 2008) (citations omitted).
The inquiry required under Garcetti to determine whether an individual
is acting pursuant to his official duties is a “practical one” that does not turn
on a given employee’s formal job description. Garcetti, 547 U.S. at 424-25.
Expression does not have to fall within a public employee’s job description or
response to an employer’s inquiry in order to constitute speech made
pursuant to the speaker’s official duties. Weintraub v. Board of Education, 593
F.3d 196, 203 (2d Cir. 2010). Factors relevant to the analysis include the
employee’s duties, the impetus for his or her speech, the setting and subject
16

matter of that speech, and the identities of the individuals to whom that
speech is addressed. See Brown v. Tucci, 2013 WL 2190145 (W.D. Pa. May
20, 2013) (citing Weisbarth v. Geauga Park District, 499 F.3d 538, 546 (6th
Cir. 2007)). Consideration may also be given to “whether the speech was
made inside or outside of the workplace and whether it concerned the subject
matter of the speaker’s employment.” Id. (citing Handy-Clay v. City of
Memphis, 695 F.3d 531, 540-41 (6th Cir. 2012)).
Defendants Brogan, Krawetz, O’Hara, Dougalas, and Hoke argue that
they are entitled to summary judgment on Gula’s First Amendment retaliation
claim because she did not speak out on a matter of public concern. Gula
alleges that she exercised her First Amendment rights by complaining of
on-going sex discrimination, retaliation, hostile work environments, and by
engaging in protected union activity by filing grievances. (Doc. 19 at 33).
Specifically, Gula alleges that she exercised her First Amendment rights by
lodging a sexual harassment complaint against Brackett at the Trevose
Barracks, by giving statements in other IAD investigations involving sexual
misconduct at the Trevose Barracks, by complaining to Jennings on
December 4, 2012 that she was being harassed at the Fern Ridge Barracks
which resulted in an IAD investigation, and by complaining about the alleged
August 1, 2012 domestic assault by Thomas. Defendants respond by stating
17

that “[Gula’s] protected speech which included testimony in investigations
involving alleged sexual misconduct was unknown to four of the Defendants
at the time they made their determinations regarding prosecution of, and
disciplining [Gula].” (Doc. 91 at 14).
As mentioned above, Brogan, Hoke, Krawetz and Dougalas were not
aware of the Brackett IAD prior to the filing of the present action. (Doc. 35 at
2-3). Thus, Gula’s statements about sexual misconduct by Brackett cannot be
the basis for her First Amendment claim against these four defendants. See
Ambrose v. Twp. of Robinson, 303 F.3d 488, 494 (3d Cir. 2002) (court held
that temporal proximity alone cannot establish causation with respect to a
First Amendment retaliation claim without additional evidence of the
defendant’s knowledge of the protected activity); Cooper v. Menges, 541 Fed.
Appx. 228, 232 (3d Cir. 2013) (“The defendant must be aware of the protected
conduct in order to establish the requisite causal connection.” (citations
omitted). Further, to maintain a constitutional claim against a defendant under
§1983, plaintiff must show that each defendant had personal involvement in
the alleged violation of plaintiff’s rights. See Rode, supra. The alleged
personal involvement of Brogan, Hoke, Krawetz and Dougalas regarding
Gula’s retaliation claim based on the Brackett IAD is insufficient since they
were not aware of it when they took their alleged retaliatory actions against
18

her.
Additionally, when Gula was stationed at the Trevose Barracks, she
provided statements in other IAD investigations which were conducted at the
Trevose Barracks. Brogan, Hoke, Krawetz and Dougalas were not aware that
Gula had made statements in other IAD investigations at the Trevose
Barracks. (Id. at 3). As such, Gula’s statements about other IAD investigations
involving the Trevose Barracks cannot be the basis for her First Amendment
claim against these four defendants. See Ambrose, supra.
However, there is sufficient evidence that the five individual defendants
were aware of other statements Gula made which she alleges constituted
protected speech. On August 2, 2012, Krawetz assigned Brogan to
investigate Gula’s assault allegations against Thomas, and they both
determined the allegations were “unfounded.” Gula alleges that Brogan’s
investigation contained false and misleading information and that it omitted
material evidence favorable to her. On August 8, 2012, Krawetz entered a
Blue Team Entry alleging misconduct against Gula for filing a false report
about the Thomas assault incident and he also opened a criminal
investigation into Gula. On August 9, 2012, Dougalas placed Gula on
restricted duty status pending the outcome of the criminal and internal
investigations. When Gula was arrested on December 13, 2012 by Krawetz,
19

she was suspended without pay by Hoke. When O’Hara received the IAD
regarding the misconduct charge against Gula for making false reports, prior
to making his recommendations with respect to sanctions as DDO, he
reviewed the criminal investigation file regarding her assault allegation against
Thomas as well as the Brackett IAD and other IADs in which Gula gave
statements as a witness. (Doc. 53 at 9).
Thus, there is sufficient evidence that Brogan, Hoke, Krawetz, O’Hara
and Dougalas were all aware that Gula had made some of the statements
which she alleges constituted protected speech with respect to her First
Amendment retaliation claim.
Gula also states that in May and June of 2012, “[she] reported a male
member of the State Police who made threats to harm himself, which is a
matter of public concern.” Gula further states that she “provided information
concerning potential drug activity, implicating her ex-boyfriend [Thomas] and
John Estock who was later charged with, convicted of, and imprisoned for
federal drug crimes.” As such, Gula states that “[r]eporting drug activity
observed as a citizen is certainly a matter of public concern.” Additionally,
Gula indicates that she made statements about arresting an Exeter Township
politician.(Doc. 87 at 15-16). However, with respect to these three statements,
since Gula has not pointed to evidence to show that any of the five individual
20

defendants knew about them, her First Amendment claim based on these
statements fails. See Ambrose, supra. Nor does she point to any evidence to
show that these statements were the cause of any alleged retaliatory actions.
The court will now focus on whether Gula’s statements about domestic
violence, harassment and sexual misconduct which she alleges resulted in
the criminal charges, the misconduct charge, and the IAD investigation are
matters of public concern that can support Gula’s First Amendment claim.
Defendants state that none of the instances of protected speech alleged
by Gula “address a societal or political concern of the community” and that
they all “are related to conduct that was personal to Gula and involved her
interpersonal relationships at work and in her private life.” They also point out
that “a public employee’s internal complaint is not protected by the First
Amendment where there is no evidence in the record that the employee made
a public statement nor sought to advance a political or social point of view
beyond the employment context.” (Doc. 36 at 19-20) (citing Borough of
Duryea v. Guarnieri, 564 U.S. 379, 131 S.Ct. 2488, 2501 (2011)). Defendants
also cite to Sharif v. Manning, 2013 WL 3754818, *12 (M.D.Pa. July 11,
2013), in which the court held that plaintiff’s internal grievances and internal
appeal with the PSP of an IAD complaint against him were not matters of
public concern giving rise to a First Amendment claim. As such, defendants
21

contend that the harassment complaints made by Gula do not constitute
public speech and that they are “internal complaints that do not rise to a
matter of public concern.” (Id. at 20).
Additionally, defendants state that there is no evidence in the record
that Gula’s statements regarding the IAD investigations of which O’Hara was
aware were the cause of any alleged retaliatory actions. However, Gula has
shown that the criminal investigation was initiated against her shortly after
Brackett was disciplined, that the criminal charges against her were filed the
day after she gave her statement in the IAD investigation regarding her
complaint of harassment at the Fern Ridge Barracks, and that she was
disciplined and suspended without pay because she engaged in these
activities which constitutes unlawful retaliation. Gula also maintains that her
speech was made “pursuant to her independent duties as a citizen, and it was
made as a public citizen, not pursuant to [her] ordinary job duties as a [PSP]
Trooper.” (Doc. 87 at 12).
The court will now address the specific requirements to determine
whether Gula’s speech was a matter of public concern. “[W]hen public
employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.”
22

Garcetti, 547 U.S. at 421. A public employee’s speech is only protected when
“(1) in making it, the employee spoke as a citizen, (2) the statement involved
a matter of public concern, and (3) the government employer did not have ‘an
adequate justification for treating the employee differently from any other
member of the general public’ as a result of the statement he [or she] made.”
Flora, 776 F.3d at 175 (quoting Garcetti, 547 U.S. at 418). The defendants
mainly challenge the first prong of this three-part inquiry.
Whether a public employee is speaking as a citizen turns upon the
question of “whether the speech at issue is itself ordinarily within the scope
of an employee’s duties.” Lane v. Franks, 134 S.Ct. 2369, 2379 (2014). The
Supreme Court and the Third Circuit have clarified that the test should not be
whether the speech “concerns” or was “related to” those duties. Id. at 2379;
Flora, 776 F.3d at 178–79. The inquiry is a mixed question of law and fact;
“the scope and content of [the public employees] . . . job responsibilities is a
question of fact, but the ultimate constitutional significance of those facts is
a question of law.” Flora, 776 F.3d at 175.
There is no “comprehensive framework” for defining the scope of an
employee’s duties. Garcetti, 547 U.S. at 424.
The proper inquiry is a practical one. Formal job descriptions
often bear little resemblance to the duties an employee actually
is expected to perform, and the listing of a given task in an
23

employee’s written job description is neither necessary nor
sufficient to demonstrate that conducting the task is within the
scope of the employee’s professional duties for First Amendment
purposes.
Id. at 424–25. In Lane v. Franks, 134 S.Ct. at 2380, the Supreme Court found
that grand jury testimony given by a supervisor about a subordinate employee
who was indicted for mail fraud and theft of receiving federal funds was citizen
speech. The employee’s testimony included statements that the subordinate
employee performed “virtually no services,” “generated virtually no work
product,” and “rarely even appeared for work.” Id. at 2375. The Supreme
Court determined that this testimony was protected even though the
information underlying the testimony was gathered due to the speaker’s role
as supervisor. Id. at 2375, 2380. The Supreme Court focused on the manner
of the speech as sworn testimony and found that such testimony fell outside
the ordinary responsibilities of the supervisor. Id. at 2379. The Supreme Court
also “recognized that speech by public employees on subject matter related
to their employment holds special value precisely because those employees
gain knowledge of matters of public concern through their employment.” Id.
at 2379.
In the instant case, the court finds that Gula’s ordinary job
responsibilities as a PSP trooper did not include providing statements in

24

sexual misconduct cases involving male members of the PSP at the Trevose
Barracks, complaining about work place harassment, and complaining about
an alleged domestic violence incident. The court cannot conclude that all of
these activities fell within Gula’s ordinary job responsibilities and finds that
she has presented sufficient evidence to show that she was speaking as a
citizen and not as PSP trooper. Further, the court finds that defendants’
reliance on the Sharif case regarding the filing of internal grievances is not
persuasive in light of the subsequent precedential Flora case decided by the
Third Circuit.
The fact that Gula became aware of the misconduct issues in the
barracks by virtue of her position as PSP trooper does not automatically mean
that her speech is unprotected. See Flora, 776 F.3d at 177–78. The Lane
case explains that the proper inquiry in distinguishing between unprotected
employee speech and protected citizen speech is “whether the speech at
issue is itself ordinarily within the scope of [the] employee’s duties.” 134 S. Ct.
at 2379. Thus, it is no longer the appropriate inquiry as to whether the issues
raised by Gula relate to or concern her job duties. Id. at 2379; Flora, 776 F.3d
at 178–79. As such, Gula’s speech, particularly her speech about alleged
sexual harassment and misconduct in the workplace as well as her speech
regarding domestic violence, can be said to have sought “to advance a
25

political or social point of view beyond the employment context”, Guarnieri,
131 S.Ct. at 2501, making them matters of public concern. See Snyder v.
Phelps, 562 U.S. 443, 453 (2011). Further, Gula has shown that she made
more than one complaint about sexual harassment and misconduct in the
workplace. “Claims of sexual and racial discrimination can constitute matters
of public concern, even if plaintiff makes those claims in private.” Middleton
v. Deblasis, 844 F.Supp.2d 556, 564 (E.D.Pa. 2011). Although, “speech that
relates solely to mundane employment grievances does not implicate a matter
of public concern,” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 467 (3d
Cir. 2015), “governmental inefficiency and misconduct is a matter of
considerable significance.” Garcetti, 547 U.S. at 425.
Gula’s interest in providing truthful statements about the alleged
inappropriate behavior and misconduct clearly outweighs the PSP’s interest
in avoiding workplace disruptions. With respect to the final requirement, there
is sufficient evidence, as detailed above, to show that Gula’s statements were
a substantial or motivating factor for retaliatory action. For instance, Gula has
shown that after she complained about harassment in the Fern Barracks to
Jennings and the day after she gave a statement in the resulting IAD
investigation, she was arrested and criminally charged by Krawetz. The court
also finds, as detailed above, that Gula’s stated protected speech had
26

sufficient temporal proximity to the alleged retaliatory acts.
Next, even though defendants do not address this requirement, the
court finds that Gula provided sufficient evidence to show that the defendants
did not have “‘an adequate justification for treating the employee differently
from any other member of the general public’ as a result of the statement[s]
[she] made.’” Flora, 776 F.3d at 175 (quoting Garcetti, 547 U.S. at 418). The
court utilizes the Pickering balance test which requires that the court “balance
. . . the interests of the [employee], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its employees.”
Pickering, 391 U.S. at 568. “In performing this balancing, the manner, time,
place, and entire expression of the context of the expression are relevant.”
Swartwelder v. McNeilly, 297 F.3d 228, 235 (3d Cir. 2002). Specifically, a
plaintiff’s interest as a citizen as well as the public’s interest in the speech
must be balanced against the government’s interest “as an employer, in
promoting workplace efficiency and avoiding workplace disruption.” Dougherty
v. Sch. Dist. of Phila., 772 F.3d 979, 991 (3d Cir. 2014). The defendants have
not argued what interest they have in suppressing Gula’s speech in the
context of the PSP and without any assertion or demonstration of a
government interest, the balance tips in Gula’s favor. See Lane, 134 S. Ct. at
27

2381.
Thus, the court will deny defendants’ motion for summary judgment with
respect to Gula’s First Amendment retaliation claim as against Brogan, Hoke,
Krawetz, O’Hara and Dougalas.
B. Counts III and IV, Sex Discrimination Claims Under Title VII and
the PHRA
In Count III, Gula raises her sex discrimination claim under Title VII
against the PSP and, in Count IV, her sex discrimination claim under the
PHRA against all defendants.5 However, her sex discrimination under the
PHRA against only Dougalas and Hoke remains. Defendants contend that
they are entitled to summary judgment on Gula’s sex discrimination claims
because she cannot show that similarly situated non-protected class (i.e.,
male) employees of the PSP were treated more favorably. Gula argues that
there are genuine issues of material fact in dispute for her sex discrimination
claims precluding summary judgment for defendants.
7

The court notes that the analysis of all of Gula’s Title VII claims applies
equally to all of her PHRA claims. See Rozic v.Trinity Industries, Inc., 47 Fed.
Appx. 151, 152 (3d Cir. 2002); Davis v. Tammac Corp. 127 F. Supp. 2d 625,
629 n. 6 (M.D. Pa. 2000) (“Claims brought under the PHRA are analyzed
under the same standards as their federal counterparts.”) (citations omitted);
Thimons v. PNC Bank, N.A., 254 Fed. Appx. 896, 897 n. 1 (3d Cir. 2007); see
also Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999)
(race and gender discrimination claims under Title VII and the PHRA are
analyzed together for summary judgment purposes).
28

In Howard v. Blalock Elec. Service, Inc., 742 F.Supp.2d 681, 689-90
(W.D.Pa. 2010), the court explained:
Title VII’s anti-discrimination provision provides that it is an
“unlawful employment practice” for an employer “to discriminate
against any individual with respect to his [or her] compensation,
terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin ....” 42
U.S.C. §§2000e–2(a)(1). In Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 63–69, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the
United States Supreme Court recognized that an employer
discriminates against an employee because of his or her sex
when it engages in sex-based harassment that is sufficiently
“severe or pervasive” to alter the “terms, conditions, or privileges”
of his or her employment. The holding in Meritor Savings Bank
applies with equal force to harassment based on an individual's
race, color, religion or national origin. Abramson v. William
Paterson College of New Jersey, 260 F.3d 265, 276, n. 5 (3d Cir.
2001). Harassment which does not alter the “terms, conditions, or
privileges” of one's employment, however reprehensible it may be,
does not run afoul of Title VII. Meritor Savings Bank, 477 U.S. at
67, 106 S.Ct. 2399. An isolated incident amounts to a change in
the “terms, conditions, or privileges” of one’s employment only if
it is “extremely serious.” Faragher v. City of Boca Raton, 524 U.S.
775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Title VII’s
anti-discrimination provision prohibits only those forms of
discriminatory harassment that are severe or pervasive enough
to create a hostile or abusive working environment. Pennsylvania
State Police v. Suders, 542 U.S. 129, 146–147, 124 S.Ct. 2342,
159 L.Ed.2d 204 (2004).
(footnote omitted).
Section 2000e-2(m) of Title VII (42 U.S.C.) provides, in pertinent part,
that “an unlawful employment practice is established when the complaining
party demonstrates that race, color, religion, sex, or national origin was a
29

motivating factor for any employment practice, even though other factors also
motivated the practice.” Title VII “prohibits employers from discriminating
against individuals on the basis of their race, color, religion, sex, or national
origin.” Burton v. Teleflex, Inc., 707 F.3d 417, 426 n. 7 (3d Cir. 2013) (citing
42 U.S.C. §20002-2(a)(2)).
In Jones v. SEPTA, 796 F.3d 323, 327 (3d Cir. 2015), the Third Circuit
stated:
To state a prima facie case of gender discrimination [under Title
VII], [plaintiff] [is] required to show that (1) she is a member of a
protected class; (2) she was qualified for her position; (3) [she
suffered] an adverse employment action; and (4) the
circumstances of the [adverse employment action] give rise to an
inference of discrimination.
See also Page v. Trustees of Univ. of Pennsylvania, 222 Fed. Appx. 144, 145
(3d Cir. 2007); Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d
Cir.1999).
The Court in Burlington v. News Corp., 759 F.Supp. 2d at 592-593
(E.D.Pa. 2010), stated:
Although showing that similarly situated coworkers were treated
more favorably than the plaintiff is one method of satisfying the
final element of a prima facie case of discrimination, it is not the
only one. The Third Circuit has explained that although some
circuits have required plaintiffs to make such a showing in
discrimination cases, “that is not the current law in this or the
majority of the circuits.” Sarullo, 352 F.3d at 798 n. 7 (citations
omitted). Indeed, the Third Circuit has counseled in Sarullo and
elsewhere that the prima facie case is intended to be a flexible
standard. See id. at 797–98 (“[T]he prima facie test remains
30

flexible and must be tailored to fit the specific context in which it
is applied.” (citing Geraci v. Moody–Tottrup, Int'l, Inc., 82 F.3d
578, 581 (3d Cir. 1996))); Weldon v. Kraft, Inc., 896 F.2d 793, 798
(3d Cir. 1990) (“The framework set forth in McDonnell Douglas,
which begins with proof of a prima facie case, was ‘never
intended to be rigid, mechanized, or ritualistic.’ ” (quoting Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57
L.Ed.2d 957 (1978))). The Third Circuit has stated that to
establish a prima facie case, it is sufficient for a plaintiff to adduce
evidence that “establishes a causal nexus between the harm
suffered and the plaintiff’s membership in a protected class, from
which a juror could infer, in light of common experience, that the
defendant acted with discriminatory intent.” Anderson v.
Wachovia Mortg. Corp., 621 F.3d 261, 275 (3d Cir. 2010)
(discussing prima facie case in §1981 context); Sarullo, 352 F.3d
at 798 (plaintiff “must establish some causal nexus between his
membership in a protected class” and the adverse employment
decision to establish a prima facie case of discrimination in Title
VII case).
Also, “the burden to establish a prima facie case is not an onerous one.”
Young v. St. James Management, LLC, 749 F.Supp. 2d 281, 288 (E.D. Pa.
2010). The elements are dependent on the facts of the specific case. Id.
(citation omitted). The plaintiff’s burden of proof is a preponderance of the
evidence standard. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d
1061 (3d Cir. 1996).
Moreover, in Carroll v. Lackawanna County, 2015 WL 5512703, *5
(M.D.Pa. Sept. 16, 2015), the court stated that “[g]ender discrimination claims
brought under Title VII, the PHRA, and the Equal Protection Clause are
governed by the McDonnell Douglas burden-shifting framework.” (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973);
31

Stewart v. Rutgers, 120 F.3d 426, 432 (3d Cir.1997) (applying the McDonnell
Douglas framework to analyze discrimination claims under the Equal
Protection Clause)). The court in Carroll, id., stated that “[u]nder the
McDonnell Douglas framework, a plaintiff must first establish a prima facie
case of employment gender discrimination [by showing that]: (1) she is within
a protected class, (2) she was qualified for the position, (3) she suffered an
adverse employment action, and (4) [ ] a similarly situated individual outside
the plaintiff's protected class was treated more favorably.” (citations omitted).
Also, “[t]he determination of whether a prima facie case has been made
[regarding gender discrimination claims brought under Title VII and the Equal
Protection Clause] is a legal one for the court to decide.” Id. (citing Pivirotto
v. Innovative Sys., 191 F.3d 344, 347 n. 1 (3d Cir. 1999)).
Defendants state that “[i]n making her claim that she was discriminated
against based upon her gender with regards to her suspension without pay
and court martial, Gula cannot prove a prima facie case. Gula cannot prove
the fourth element: that similarly situated men were treated better than Gula.”
(Doc. 36 at 22). They state that all employees of the PSP are suspended
without pay if they are arrested for crimes that can result in a prison sentence
of one year or more. They also state that Gula’s court martial was primarily
determined by her failure to respond “100% truthfully” in the IAD investigation
initiated to see if she gave false reports. Thus, they maintain that Gula has
32

failed to prove that similarly situated males were treated more favorably than
her.
The court finds that Gula has submitted enough evidence from which
a factfinder could reasonably conclude that the PSP treated her less favorably
than similarly situated male employees. Gula has presented evidence that she
was investigated both criminally and internally by the PSP and then placed on
restricted duty, arrested, suspended without pay, and court martialed for
allegedly giving false statements about the incident with Thomas. She also
presented evidence to support her contention that the PSP and its officials
filed criminal charges against her based on an affidavit of probable cause that
contained false and misleading statements and withheld exculpatory
evidence. Gula has produced sufficient evidence that other male members of
the PSP were treated differently than she was. She showed that Brackett, a
male trooper, was not arrested and criminally charged for grabbing her at the
Trevose Barracks and pulling her on his lap or for using the PSP computers
on work time to sexually harass her. Nor was Brackett court martialed after
the IAD investigation commenced due to Gula’s complaints. Rather he was
given a short suspension without pay and the sexual misconduct charges
were removed from his record after his administrative appeal. Gula also
presented evidence to dispute the date that Jennings testified he prepared his
electronic notes typed on his computer shortly after she reported the incident
33

with Thomas to him, and that he actually created the notes at a much later
date to discredit her report. Gula showed that Jennings was not investigated
either criminally or internally, was not disciplined, was not arrested for perjury,
was not suspended without pay and, that he was not court martialed for the
inconsistency she contends was a lie. Gula also showed that female troopers
charged with allegedly lying were court martialed, namely, Andrea Young, a
female trooper who was given a misconduct and court martialed for allegedly
lying, and herself. She showed that during Hoke’s long experience with the
PSP he had never been in a position where he had to ask for a prosecutorial
decision on whether to prosecute a member of the PSP. (Doc. 60 at 18). Gula
showed that Jennings did not recall a male trooper who was ever placed on
restricted duty for domestic violence charges. Gula further showed that
Jennings did not do a Blue Team Entry or report to his superiors that a male
trooper in the Fern Ridge Barracks alleged threatened to kill himself. (Doc. 53
at 14, 19). She also demonstrated that Jennings did not write a Blue Team
Entry about a male trooper who was upset with another male trooper, and
flipped a table over at work. (Doc. 53 at 14-15).
Therefore, the court will deny defendants’ summary judgment motion
with respect to, Gula’s sex discrimination claim under Title VII against the
PSP, Count III, and, her sex discrimination claim under the PHRA against
Hoke and Dougalas in Count IV.
34

C. Counts V and VI, Hostile Work Environment Claims Under Title
VII and the PHRA
In Count V, Gula raises her hostile work environment claim based on
sex under Title VII against the PSP. In Count VI, her hostile work environment
claim based on sex under the PHRA remains against Dougalas and Hoke.
Defendants argue that they are entitled to summary judgment on Gula’s
hostile work environment because the alleged harassment was not based on
her gender and was not severe or pervasive.
In order for an employee to establish a claim of harassment, the court
in Taylor v. JFC Staffing Assoc., 690 F.Supp.2d 357, 367-68 (M.D.Pa. 2009),
stated that the plaintiff must show the following five elements:
(1) [plaintiff] suffered intentional harassment based on [gender];
(2) the harassment was severe or pervasive; [fn 4]; (3) the
harassment detrimentally affected [plaintiff]; (4) the harassment
would have detrimentally affected a reasonable person in like
circumstances; and (5) there is a basis for employer liability [for
the harassment under a theory of respondeat superior liability].
Fn4. The Third Circuit has often stated that discriminatory
harassment must be “severe and pervasive.” See e.g., Cardenas
v. Massey, 269 F.3d 251, 260 (3d Cir. 2001); West v. Phila. Elec.
Co., 45 F.3d 744, 753 (3d Cir. 1995); Andrews v. City of
Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). But the
Supreme Court’s standard is “severe or pervasive.” Pa. State
Police v. Suders, 542 U.S. 129, 133, 124 S.Ct. 2342, 159 L.Ed.2d
204 (2004). As the Third Circuit recognized in Jensen v. Potter,
435 F.3d 444, 449 (3d Cir. 2006), overruled in part on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), “the difference is
meaningful, and the Supreme Court’s word controls.” Id. at n. 3.
By using the disjunctive “or” the Supreme Court clearly meant that
“severe” and “pervasive” are alternative possibilities. In other
35

words, some conduct, although isolated and sporadic, may be
severe enough to contaminate the workplace; whereas, other,
less objectionable, conduct must be pervasive in order to
contaminate the workplace such that it meets the threshold under
the second prong of a hostile work environment claim.
“When a workplace is so permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of [a] victim’s employment and create an abusive working
environment, Title VII is violated.” Oncale v. Sundowner Offshore Srvs., Inc.,
523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
The same standards apply to hostile work environment claims under
Title VII and the PHRA based on gender discrimination with the word
“discrimination” substituted for the word “harassment” in elements 1-4 stated
above. See Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d 535, 544 (W.D.Pa.
2009) (citations omitted). Thus, to prove a hostile work environment claim
under Title VII, plaintiff must show that: (1) she suffered intentional
discrimination because of her [gender]; (2) the discrimination was severe or
pervasive; (3) the discrimination detrimentally affected her; (4) the
discrimination would have detrimentally affected a reasonable person of the
same protected class in her position; and (5) there is a basis for vicarious
liability. Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104
(3d Cir. 2009).
“[A] court’s hostile work environment analysis ‘must concentrate not on
36

individual incidents, but on the overall scenario’ because it is often difficult to
determine the motivation behind allegedly discriminatory actions.” Syed, 906
F.Supp.2d at 355 (citation omitted). “In assessing the evidence presented,
[the court] must consider the totality of the circumstances, including ‘the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance. The effect on
the employee’s psychological well-being is ... relevant.... But while
psychological harm ... may be taken into account, no single factor is
required.’” Miller v. Thomas Jefferson Hosp., 565 F.3d 88, 93 (3d Cir. 2014)
(citation omitted).
In viewing the facts of record and all reasonable inferences derived
therefrom, in the light most favorable to Gula, the court finds that Gula has
produced enough evidence to create a genuine issue of material fact for a jury
to resolve. As detailed above, Gula has submitted sufficient evidence from
which a reasonable factfinder could infer that the incidents of harassment and
discrimination at the PSP were motivated by gender animus and, she has
produced enough evidence to show a severe and pervasive hostile work
environment causing her to be visibly upset and to report the harassment at
both barracks. When she was stationed at the Trevose Barracks, Brackett
sent emails at work asking Gula about her “tan lines” and referring to her as
37

a “kitten,” he pulled her onto his lap at the work place, and he made Gula feel
uncomfortable at work due to his repeated unwanted sexual advances. Gula
was also harassed at the Fern Ridge Barracks requiring Jennings to issue a
Blue Team Entry over the incidents. Also, when Gula was transferred to the
Fern Ridge Barracks, she was required to use the same bathroom as the
male troopers since special arrangements were not made to accommodate
her. (Doc. 53 at 16). Gula was then court martialed in September 2014, after
she was acquitted of all criminal charges, and she was suspended without
pay for months while her arbitration was pending until she prevailed.
Thus, there is sufficient evidence in the above stated record to show
that genuine disputes of material fact exist as to whether plaintiff suffered
intentional harassment or discrimination at the PSP, and that she endured a
severe and pervasive hostile work environment.
As such, the court will deny defendants’ summary judgment motion with
respect to Gula’s hostile work environment claim based on sex against the
PSP under Title VII, and against Dougalas and Hoke under the PHRA.
D. Counts VII and VIII, Retaliation Claims Under Title VII and the
PHRA
Finally, in Count VII, Gula raises her retaliation claim under Title VII
against the PSP, and in Count VIII, her retaliation claim under the PHRA
against Dougalas and Hoke remains. Gula contends that the PSP violated
38

Title VII by retaliating against her for asserting her rights to work in an
environment free of sexual discrimination and harassment. She states that
after complaining to the PSP and its officials, she suffered illegal retaliation
by them which was motivated due to her engaging in protected activity and
being a member of a protected class. With respect to the PHRA retaliation
claim, Gula states that she repeatedly warned the individual defendants that
she was being subjected to discrimination through unfair and disparate
practices taken against her and, that she was being subjected to a hostile
work environment by defendants and her coworkers. She states that PSP’s
supervisory employees “failed or refused to investigate, alleviate, or eliminate
the discrimination being practiced against [her] despite her complaints” and
that the defendants’ actions were illegally motivated by her engaging in
protected activity and being a member of a protected class. (Doc. 19 at 56).
In order to properly plead a retaliation claim in violation of Title VII, a
plaintiff must prove a prima facie case by providing facts showing that: (1) she
was engaged in a protected activity; (2) she has suffered an adverse
employment action based on exercise of the protected activity; and (3) there
is a causal link between the protected activity and the adverse employment
action. Hussein v. UPMC Mercy Hospital, 466 Fed. Appx. 108, 111-12 (3d Cir.
2012) (citing Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir.
2006)); Farrell v. Planters Lifesavers Company, 206 F.3d 271, 279 (3d Cir.
39

2000). Further, plaintiff must show a causal connection between her
participation in a protected activity and the adverse employment action.
Thomas v. Pocono Mtn. Sch. Dist., 2011 WL 2471532, *8 (M.D.Pa. June 21,
2011). “Causation ‘may be demonstrated by evidence of circumstances that
justify an inference of retaliatory motive, such as protected conduct closely
followed by adverse action.’” Id. (citation omitted).
In Mufti, 667 F.Supp.2d at 552, the court stated:
A plaintiff must participate in a protected activity to establish a
retaliation claim. See Barber v. CSX Distribution Services, 68
F.3d 694, 700–701 (3d Cir. 1995) (finding a general letter of
complaint that did not mention discrimination was not a protected
activity). Protected activity includes formal charges of
discrimination “as well [as] informal protests of discriminatory
employment practices, including making complaints to
management, writing critical letters to customers, protesting
against discrimination by industry or society in general, and
expressing support of co-workers who have filed formal charges.”
See e.g., Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d
Cir. 1990). However, to constitute “protected activity,” the
employee must also have a “good faith, reasonable belief that a
violation existed.” Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1085 (3d Cir. 1996).
To satisfy the third, “material adversity,” element of a retaliation claim,
plaintiff must prove that the action “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Hare v. Potter,
220 Fed.Appx. 120, 128 (3d Cir. 2007) (citing Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2415 (2006)).
Further, “Title VII’s anti-retaliation provisions [42 U.S.C. §2000e-3]
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protect employees who oppose employment practices made illegal by Title
VII.” Brangman v. Astrazeneca, LP, 952 F.Supp.2d 710, 721 (E.D.Pa. 2013)
(citation omitted). “The Plaintiff must therefore be opposing employment
practices made illegal by Title VII.” Id. (citation omitted). Also, “case law has
established that opposition to an illegal employment practice must identify the
employer and the practice – if not specifically, at least by context.” CurayCramer v. Ursuline Academy of Wilmington, Delaware, Inc., 450 F.3d 130,
135 (3d Cir. 2006). Moreover, “[a] general complaint of unfair treatment is
insufficient to establish protected activity under Tile VII.” Curay-Cramer v.
Ursuline Academy of Wilmington, Delaware, Inc., 450 F.3d at 135 (citations
omitted). “[T]o succeed on a Title VII retaliation claim, an employee must have
an ‘objectively reasonable’ belief that the activity he opposes constitutes
unlawful discrimination under Title VII.” Ferra v. Potter, 324 Fed.Appx. 189,
192 (3d Cir. 2009) (citation omitted). Thus, in order for plaintiff’s complaints
about her treatment by her co-workers to constitute protected activity under
Title VII, a reasonable person must believe that the conduct complained of
violated Title VII. Id. (citation omitted); Barber v. CSX Distribution Servs., 68
F.3d 694, 701-02 (3d Cir. 1995) (complaints about unfair treatment in general
and expressions of dissatisfaction in the workplace “do[] not constitute the
requisite ‘protected conduct’ for a prima facie case of retaliation.”).
In Hussein, 466 Fed. Appx. at 112., the Third Circuit stated the following
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about the PHRA in relation to Title VII:
The PHRA, which we generally interpret consistently with Title VII,
likewise forbids employers from retaliating against employees for
asserting their rights under the PHRA. See Fogleman v. Mercy
Hosp., 283 F.3d 561, 567 (3d Cir. 2002)(“The language of the
PHRA is . . . substantially similar to [Title VII and other federal]
anti-retaliation provisions, and we have held that the PHRA is to
be [] interpreted as identical to federal anti-discrimination laws
except where there is something specifically different . . . .”)
(citing Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996)).
The court analyzes plaintiff’s Title VII retaliation claim and her PHRA
retaliation claim under the aforementioned Title VII retaliation prima facie
requirements.
Defendants argue that the PSP, Dougalas and Hoke are entitled to
summary judgment on Gula’s Title VII and PHRA retaliation claims because
there is no causal connection between her protected activities and her
discipline. The protected activities in which Gula has shown she participated
that are proscribed by Title VII and which she alleges resulted in retaliation
are the Brackett IAD, other IAD investigations at the Trevose Barracks in
which she gave statements, and her complaint to Jennings of a hostile work
environment at the Fern Ridge Barracks. The adverse employment actions
Gula claims were caused by her protected activities included her placement
on restricted duty (in which she was ordered to surrender her weapon and ID)
and the criminal investigation following her report of the domestic violence
incident with Thomas, which occurred shortly after the Brackett IAD, as well
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as her two suspensions without pay and her court martial. Gula also claims
that the PSP, as well as supervisory officials Dougalas and Hoke, were aware
of her protected conduct and of the ensuing adverse employment actions
taken against her. The evidence showed that Douglas sustained two separate
allegations of misconduct against Gula, one for false reports and the second
for “lying in a criminal and an administrative investigation.”
The court finds disputed material facts exist regarding Gula’s retaliation
claims. Defendants state that they have shown that all members of the PSP
are suspended without pay under CILEA when they are arrested for crimes
that can result in a prison sentence of one year or more. While this may justify
Gula’s first suspension without pay, it does not explain her second
suspension without pay after the jury acquitted her of all of the criminal
charges. Defendants also contend that Gula’s court martial was mainly
determined by her failure to “100% truthfully” respond in the IAD investigation
as to whether she gave false statements regarding her domestic assault
allegations against Thomas. After Gula was court martialed following her
acquittal of the criminal charges, including the charges that she gave false
reports to authorities about the domestic assault incident with Thomas, she
returned to work but her duties were restricted. In September 2014, Gula was
court martialed and suspended without pay for months while her arbitration
was pending. She eventually prevailed at arbitration upon the arbitrator’s
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finding that the PSP lacked clear and convincing evidence to terminate her
and, she was reinstated to her position with the PSP and awarded back pay
and benefits.
Thus, the court will deny defendants’ motion with respect to Gula’s Title
VII and PHRA retaliation claims against the PSP, and against Hoke and
Dougalas, respectively.

V.

CONCLUSION
For the foregoing reasons, the defendants’ motion for partial summary

judgment with respect to Gula’s First Amendment retaliation claim, Count I,
as against Brogan, Hoke, Krawetz, O’Hara and Dougalas is DENIED. The
defendants’ motion with respect to Gula’s sex discrimination claim under Title
VII against the PSP, Count III, and, her sex discrimination claim under the
PHRA against Hoke and Dougalas, Count IV, is DENIED. The defendants’
motion with respect to Gula’s hostile work environment claim against the PSP
under Title VII, and against Dougalas and Hoke under the PHRA, Counts V
and VI, is DENIED. The defendants’ motion with respect to Gula’s Title VII
retaliation claim against the PSP, Count VII, and her PHRA retaliation claim
against Hoke and Dougalas, Count VIII, is DENIED. An appropriate order will
follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: December 8, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2014 MEMORANDA\14-2210-03.wpd

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