SHAFFER v. FAYETTE COUNTY OF PENNSYLVANIA et al
Filing
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MEMORANDUM OPINION re 61 MOTION for Summary Judgment filed by AL AMBROSINI, FAYETTE COUNTY OF PENNSYLVANIA. For the reasons set forth more fully within Defendants' motion for summary judgment will be granted with respect to pla intiff's federal claims at Counts I and III of the Third Amended Complaint and denied with respect to plaintiff's defamation claim at Count II. Plaintiff's state law defamation claim will be dismissed without prejudice so that plaintiff may pursue that claim, if he so chooses, in state court. Signed by Chief Judge Joy Flowers Conti on 2/19/2016. (cal)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS W. SHAFFER,
Plaintiff,
v.
FAYETTE COUNTY OF
PENNSYLVANIA, and
AL AMBROSINI,
Defendants.
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Civil Action No. 14-309
MEMORANDUM OPINION
CONTI, Chief District Judge
I. Introduction
Plaintiff Thomas W. Shaffer (“plaintiff”), an attorney formerly employed by Fayette
County (the “County”) as an assistant public defender, filed this civil action against Fayette
County Commissioner Al Ambrosini (“Ambrosini”) and the County (collectively, “defendants”)
for allegedly tortious conduct undertaken in connection with the termination of plaintiff’s
employment. In his operative pleading, plaintiff asserts claims against Ambrosini for the alleged
violation of his due process rights and for defamation. Plaintiff also asserts a claim against the
County under the Equal Pay Act, 29 U.S.C. §206(d)(1).1
Presently pending before the court is defendants’ motion for summary judgment on all
counts (ECF No. 61). For the reasons that follow, the motion will be granted in part and denied
in part.
1
The court has subject-matter jurisdiction over plaintiff’s federal claims pursuant to 28 U.S.C. §1331. The court
exercises jurisdiction over the state law defamation claim pursuant to 28 U.S.C. §1367.
1
II. Factual and Procedural Background
Fayette County is a Fourth Class County of the Commonwealth of Pennsylvania. (See
Defs.’ Mot. Dismiss Second Am. Compl. ¶9, ECF No. 31; Pl.’s Resp. to Defs.’ Mot. Dismiss
Second Am. Compl. ¶ 9, ECF No.35.) Pursuant to the Pennsylvania County Code, the corporate
powers of Fayette County are vested in a board of county commissioners. See 16 PA. STAT.
§203. It is undisputed that, at all times relevant to this lawsuit, the County had a three-member
board of commissioners comprised of Vincent Zapatosky (“Zapatosky”), Angela Zimmerlink
(“Zimmerlink”), and defendant Ambrosini.
Plaintiff began working as a part-time assistant public defender for the County in January
2004. (DCSMF ¶1, ECF No. 76.)2 During the course of his employment, plaintiff worked under
the supervision of Jeffrey Whiteko (“Whiteko”), the County’s Chief Public Defender. (Pl.’s
Dep. at 25:25-26:5; Carnicella Dep. at 16:24-17:1.)3
Between October 2005 and June 2012, Whiteko issued a number of reprimands or
warnings to plaintiff concerning perceived deficiencies in his work performance. (DCSMF ¶¶ 212.) In a memorandum dated October 6, 2005, Whiteko informed plaintiff that he had “been
unhappy with [plaintiff’s] performance for the last several months” and had previously
“expressed [his] displeasure,” but recent actions in the “last three weeks have warranted this
letter.” (DCSMF ¶2; Defs.’ Ex. D, ECF No. 64-4.) According to Whiteko:
2
Citations to “DCSMF ¶__” refer to defendants’ Concise Statement of Material Fact (ECF No. 73), as set forth in
the parties’ Joint Concise Statement of Material Fact (ECF No. 76). Because plaintiff failed to specifically admit or
deny the factual averments in defendants’ Concise Statement of Material Fact as required by Local Rule 56(C)(1)(a),
defendants’ alleged facts will be deemed admitted to the extent they are not “otherwise controverted” by the
plaintiff’s own Concise Statement of Material Fact. See LCvR 56(E).
3
Portions of plaintiff’s deposition are set forth in the record as defendants’ Exhibit A (ECF No. 64-1), defendants’
Exhibit BBB (ECF No. 75-4), and plaintiff’s Exhibit C (ECF No. 71-2). Relevant portions of Dominick Carnicella’s
deposition are set forth in the record as defendants’ Exhibits Q (ECF No. 64-17), R (ECF No. 64-18), and AAA
(ECF No. 75-3), and plaintiff’s Exhibit D (ECF No. 71-2).
2
a. on September 26 and 27, 2005, plaintiff had failed to abide by Whiteko’s policy
concerning the handling of private criminal matters;
b. on September 29, 2005, plaintiff contacted the public defender’s office from the law
library to inform them that he had two separate matters scheduled before two
different judges at 2:15 p.m. and 2:45 p.m. respectively, and had not yet appeared in
court, which “caused much grief to the office and our office manager, Linda Rossi”;
c. on October 4, 2005, plaintiff was supposed to present a petition in court for the
transport of a prisoner, but he had failed to do so; when Ms. Rossi asked about the
petition, plaintiff “went to her desk and began to scream at her in the presence of our
legal secretary and part time employee.”
(Id.) Whiteko admonished plaintiff that, if he “continue[d] to be cavalier” concerning the office
scheduling policy or if he was “too busy to maintain both a private and public practice,” then he
“should part ways” with the public defender’s office. (Defs.’ Ex. D at 2.) Later that same
month, plaintiff received written and verbal counseling from Whiteko after failing to appear for a
hearing in front of a magisterial district justice due to the fact that he was waiting for a private
client. (DCSMF ¶3; Defs.’ Ex. E, ECF No. 64-5.)
On July 19, 2006, Commissioner Zimmerlink informed Whiteko that she had received a
complaint about plaintiff swearing at a citizen in the hallway of the courthouse. Whiteko advised
plaintiff about the complaint. Thereafter, a representative from the County’s human resources
department spoke to plaintiff, and plaintiff reportedly acknowledged that he had been “wrong.”
(DCSMF ¶4; Defs.’ Ex. F, ECF No. 64-6; Defs.’ Ex. G, ECF No. 64-7; Defs.’ Ex. H, ECF No.
64-8.) That same month, Whiteko sent plaintiff a letter concerning the need to have expert
witness costs reviewed and approved prior to hiring the expert. Whiteko cited two instances in
which plaintiff had failed to secure the necessary approval prior to hiring experts, which was
“creating a serious problem” for other clients in light of the office’s limited budget. (DCSMF ¶5,
Defs.’ Ex. I, ECF No. 64-9.)
3
In August 2006, Whiteko sent plaintiff a “last warning” concerning the manner in which
he was handling his private and public criminal caseloads. Whiteko reminded plaintiff that, if he
scheduled a private criminal hearing with a magistrate or judge, he was expected to help cover
public defender cases before that same judicial official. (DCSMF ¶6; Defs.’ Ex. J, ECF No. 6410.)
On July 24, 2007, Whiteko met with plaintiff to discuss plaintiff’s failure to appear for
scheduled court hearings. Whiteko memorialized the incident in a memorandum to plaintiff,
noting:
This is not the first time I have had to reprimand you for missing schedules[,]
being late for court or failing to pick up a missed day. I requested your
resignation but after much discussion it was agreed that you will receive one last
chance to correct the problems. (A copy of previous complaints are [sic]
attached.)
You will receive no other chances.
(DCSMF ¶7; Defs.’ Ex. K, ECF No. 64-11.)
The record shows that plaintiff continued to experience problems in 2011 and 2012. In
September 2011, Magisterial District Justice Ronald J. Haggerty, Jr.’s office sent an email to
Whiteko complaining that plaintiff was continuously late, leaving early before all his hearings
and cases were handled, and socializing with police officers instead of working on cases.
(DCSMF ¶8, Defs.’ Ex. L, ECF No. 64-12.) Magistrate Haggerty wrote another letter in April
2012 complaining that, despite the court’s very busy docket, plaintiff was using his time to draft
omnibus pre-trial motions on other unrelated cases, which was further slowing down Magistrate
Haggerty’s docket. (DCSMF ¶9, Defs.’ Ex. L.) The following month, plaintiff appeared forty
minutes late for a proceeding before Magistrate Haggerty. When asked why he was late,
plaintiff reportedly remarked that he had been at lunch, prompting Magistrate Haggerty to lodge
another complaint. (DCSMF ¶10; Defs.’ Ex. L.)
4
Plaintiff’s employment file documents his difficulties with other judges as well. In
January 2012 plaintiff was reportedly scheduled for trial before Judge Leskinen but, instead of
showing on time for trial, he went to motion court and then to another judge’s courtroom for
private pleas; this reportedly prompted a telephone call from the court administrator’s office
informing the public defender’s office that Judge Leskinen was “very irritated with the
situation.” (Defs.’ Ex. L at 2.) Plaintiff was again late to court on May 3, 2012, resulting in
Whiteko covering the first three hearings before Judge Capuzzi. (DCSMF ¶11; Defs.’ Ex. L.)
On June 5, 2012, Whiteko issued plaintiff a performance counseling form as a “final
notice” of his unsatisfactory job performance based on the foregoing incidents occurring between
July 2011 and May 2012. Whiteko listed plaintiff’s attitude, tardiness, and inefficiency as the
reasons that necessitated counseling. (DCSMF ¶12, Defs.’ Ex. L.)
On August 30, 2012, plaintiff and Whiteko had a verbal altercation in the public
defender’s office which allegedly resulted in plaintiff yelling at Whiteko, using profanity, and
referring to public defender clients as “scumbags.” (DCSMF ¶13.) As a result of this
altercation, plaintiff was initially suspended with pay. (Id. ¶ 14.) By letter dated October 10,
2012, from Dominick Carnicella, the County’s Human Resource Director (“Carnicella”),
plaintiff was notified that the suspension would be unpaid. (DCSMF ¶18; Defs.’ Ex. O, ECF No.
64-15.) The letter advised plaintiff that
the County Commissioners have determined that your actions on August 30, 2012
were inappropriate and violated County Policy by creating a disturbance in the
workplace, using foul and abusive language and directing disrespectful language
toward your supervisor. Due to these violations the County Commissioners have
voted to convert your paid suspension to an unpaid suspension effective August
30, 2012 as well as to mandatorily refer you to the Employee Assistance Program
(EAP) for an evaluation. This unpaid suspension shall continue through the date
of your return back to work.
Your return back to work is contingent upon your successful completion
of any evaluation and follow up plan recommended by the EAP program. Failure
5
to complete the recommended plan shall result in a recommendation for further
disciplinary action up to and including the termination of your employment. ...
(Defs.’ Ex. O, ECF No. 64-15.)
Pursuant to the EAP referral process, Carnicella completed an informational form, which
he sent to the EAP case management staff so that it could be shared with the evaluating therapist.
(DCSMF ¶19; Defs.’ Ex. P, ECF No. 64-16.) Under the topic “Expected goals,” Carnicella
indicated: “Anger management, appropriate ways to handle stress and performance counseling.
Appropriate ways to have discussions w/ supervisors. Return to work after completion of
evaluation & recommended treatment.” (Id.)
As part of the EAP process, plaintiff met with counselor Adam Sedlock on at least two
occasions for the purpose of determining whether plaintiff had an anger management problem.
(DCSMF ¶20.) The first appointment involved intake information; the second appointment
involved Mr. Sedlock’s administration of the Minnesota Multiphasic Test to evaluate whether
plaintiff exhibited violent behavior. (Id. ¶21; Pl. Dep. at 49:20-51:21, 52:14-53:22.) After
determining that plaintiff did not require treatment for anger management issues, Mr. Sedlock
notified Carnicella that plaintiff had completed what was required under the EAP referral and
was cleared to return to work. (DCSMF ¶22; Pl. Dep. at 53:2-54:5; Carnicella Dep. at 40, Feb.
12, 2015, ECF NO. 64-17; Carnicella Cont’d Dep. at 10:15-22, 11:12-15, Mar. 30, 2015, ECF
NO. 64-18.) Plaintiff returned to work on November 29, 2012. (DCSMF ¶23.)
On June 27, 2013, plaintiff was involved in an incident with Magistrate Haggerty, which
prompted the magistrate judge to lodge complaints with the Public Defender’s office and the
disciplinary board. (DCSMF ¶24.) Magistrate Haggerty’s letter to Whiteko stated the following:
This morning Mr. Shaffer was representing a client of the public defender’s office
in a preliminary hearing. I ruled on an objection made by the Commonwealth and
Mr. Shaffer did not agree with my decision. He pointed his finger at me in open
court and told me that I was not fair and that he was sick of the way that I do
6
things. Mr. Shaffer then brought up a previous case in which I asked a question
of a Commonwealth Witness that was not being represented by the District
Attorney’s Office. He felt that I assisted in the prosecution of the case and that it
would have normally been thrown out. He also told me that if I keep it up that he
planned on reporting me to the Judiciary. Mr. Shaffer then pointed to a quote that
is displayed in my court room and told me that I should follow the example quote
that my father had previously hung in the court room. I warned Mr. Shaffer of his
conduct and asked if he had a question that he wanted to ask the witness; after he
expressed a few more of his opinions to me in the open court we were able to
resume the case.
Mr. Shaffer was completely unprofessional and his actions were an
embarrassment to the court. The incident was witnessed by ADA Mark Brooks,
ADA Megan Miklusak, Chief James Capitos, Capt. Steven Shaffer, Officers Ruff,
Hominsky, Patton and several other citizens.
ADA Brooks and Chief Capitos both made statements that they have never seen
such disrespect in a court room.
Mr. Shaffer later wanted to meet with me privately in my office. He apologized
and then expressed his displeasure with me regarding a letter that I had written in
the past regarding his conduct. He also told me that I was pro-prosecution and all
of the defense attorneys know it. I told Mr. Shaffer that I intended on writing
another letter regarding his latest actions and he then threatened that he would
turn me in to the Judiciary for review.
Mr. Shaffer’s conduct is an embarrassment to our system and a disservice to the
clients that he represents.
I hope he will be dealt with accordingly. If you have any further questions I urge
you to please call any of the above listed witnesses or myself. ...
(Defs.’ Ex. U, ECF No. 64-21.)
On July 2, 2013, plaintiff was suspended without pay pending Carnicella’s investigation
of the June 27, 2013 incident. (DCSMF ¶25.) In the course of his investigation, Carnicella
spoke with Magistrate Haggerty, Assistant District Attorney Brooks, Assistant District Attorney
Miklusak, and Chief Capitos, all of whom witnessed the incident. (DCSMF ¶34; Defs.’ Ex. DDGG, ECF Nos. 64-30 through 64-33.)
By letter dated Tuesday, July 16, 2013, Carnicella notified plaintiff that: (a) based on
information obtained through its internal investigation, the County had determined that plaintiff’s
7
conduct before Magistrate Haggerty potentially violated county policy, (b) the violations could
constitute grounds for disciplinary action up to and including dismissal, and (c) plaintiff would
have an opportunity to respond to the allegations of misconduct at a meeting scheduled for that
Thursday, July 18, 2013. (DCSMF ¶¶ 26 and 28; Defs.’ Ex. Y, ECF No. 64-25.) The letter set
forth the following allegations stemming from the June 27, 2013 incident:
1. You pointed your finger at Magistrate Haggerty while screaming “I am tired
of your crap.”
2. “I am turning you into the judicial review board.”
3. “You are corrupt.”
4. “You are biased toward the prosecution.”
5. You then pointed to a sign on MDJ Haggerty’s wall stating “you should
follow the example of the quote your father hung in this Courtroom.”
(Defs.’ Ex. Y, ECF No. 64-25.)
Plaintiff spoke with Carnicella on the afternoon of Wednesday, July 17, 2013, and
notified him that he would be leaving for a one-week vacation on Friday, July 19. (Pl.’s Dep. at
92:3-5.) Carnicella told plaintiff that he could come in the following day to discuss the incident
with Magistrate Haggerty, and plaintiff agreed to do so. (Id. at 92:6-8; PCSMF ¶¶ 12-13.) 4
At the July 18, 2013 meeting, plaintiff and Carnicella discussed the June 27, 2013
incident at Magistrate Haggerty’s office and the allegations set forth in Carnicella’s July 16,
2013 letter. (Defs.’ Ex. Z, ECF No. 64-26.) Plaintiff denied certain aspects of his alleged
misconduct and provided Carnicella three affidavits from individuals who had been present
during the incident, along with their contact information. (DCSMF ¶30; Defs.’ Ex. Z, ECF No.
64-26; Defs.’ Ex. AA, ECF No. 64-27; Defs.’ Ex. BB, ECF No. 64-28; Defs.’ Ex. CC, ECF No.
4
Citations to “PCSMF ¶__” refer to plaintiff’s Concise Statement of Material Fact (ECF No. 71) and defendants’
responses thereto (ECF No. 74), as set forth in the parties’ Joint Concise Statement of Material Fact (ECF No. 76).
8
64-29.) Following his meeting with Carnicella, plaintiff submitted one additional affidavit
concerning the June 27, 2013 incident. (DCSMF ¶33.) Carnicella ultimately construed the
affidavits to be the witnesses’ full statements on the matter and did not contact them further
concerning their knowledge of the June 27, 2013 incident. (DCSMF ¶30.) Plaintiff contends
that he requested assistance from Carnicella in obtaining the contact information for additional
witnesses and asked that the record be kept open pending an opportunity to secure this
information in light of his upcoming vacation. (Pl. Dep. at 104:18-108:18.) Despite plaintiff’s
understanding that Carnicella would do so, Carnicella rendered his recommendation for
plaintiff’s termination just one week later without the benefit of any additional information. (Pl.
Dep. at 104:18-105:4; 105:22-106:6, 107:15-19, 108:5-18; Defs.’ Ex. V, ECF No. 64-22; Defs.’
Ex. W, ECF No. 64-23.)
On July 25, 2013, Carnicella sent identical memoranda to Zapatosky and Ambrosini
regarding his “[Assistant Public Defender] Inappropriate Comments Investigation.” (Defs.’ Ex.
V, ECF No. 64-22; Defs.’ Ex. W, ECF No. 64-23.) In the memoranda, Carnicella outlined the
various remarks that plaintiff had allegedly made to Magistrate Haggerty, plaintiff’s responses to
the allegations, and a summary of the accounts given by some of the witnesses who were present
at the time. (Id.) Carnicella noted that:
Mr. Whiteko is recommending Termination of Mr. Shaffer’s employment
for the above comments. Although Mr. Shaffer has the right and responsibility to
request a confidential investigation by the Judicial Conduct Board if he believes a
judge has violated the Court rules of Conduct or to file an appeal on the case if he
feels the MDJ erred, which would be reviewed by the higher Court, Mr. Whiteko
feels these comments made during the hearing were inappropriate for a hearing,
disrespectful to MDJ Haggerty and the Courts and ... didn’t professionally
represent the County or the Public Defender’s Office in this matter.
Mr. Whiteko believes that the ongoing need to counsel and discipline Mr.
Shaffer since 2005 and most recently issuing him a Final Notice on June 5, 2012
for poor attitude and tardiness as well as a Last Chance Suspension Without Pay
with required Employee Assistance Program evaluation and counseling on
9
October 10, 2012, for the screaming and cursing outburst in the Public Defender’s
office, demonstrates a pattern that can no longer be tolerated.
(Id.) Carnicella advised Ambrosini and Zapatosky that:
HR concurs with Mr. Whitko’s [sic] recommendation. Mr. Shaffer is employed at
will and has been provided multiple opportunities to correct his behavior. Per
County policy, making disrespectful comments is a violation for which an
employee shall be subject to disciplinary action up to and including termination of
employment. All of the proper steps have been taken in this matter. ...
(Id.)
Based upon the results of Carnicella’s investigation, both Ambrosini and Zapotosky
voted to terminate plaintiff’s employment.5 (DCSMF ¶36; Defs.’ Ex. V, ECF No. 64-22; Defs.’
Ex W, ECF No. 64-23.) Plaintiff was notified of his termination by letter dated July 29, 2013.
(DCSMF ¶37; Defs.’ Ex. JJ, ECF No. 64-36.)
At some point after the incident with Magistrate Haggerty but prior to his termination,
plaintiff asked Guy Peter Cordaro (“Cordaro”) and State Representative Timothy Mahoney
(“Mahoney”) to speak to Ambrosini on his behalf. (DCSMF ¶¶ 38, 42.) Cordaro understood
that plaintiff wanted him to “put in a good word for him” with Ambrosini because plaintiff was
“concern[ed] about his job” due to “some sort of incident at a hearing.” (Cordaro Dep. at 11:2023, 12:4-6, 12:22-25.)6 Cordaro asked Ambrosini, “[I]s there anything you can do for Tom, I
know he really needs to keep his job at the county because it depends on health insurance for his
son?” (Id. at 12:18-21.) According to Cordaro, Ambrosi indicated he “went to bat” for plaintiff,
but he “believe[d] Mr. Shaffer needs anger management classes.” (Id. at 13:7-9.) When
questioned further about this conversation at his deposition, Cordaro could not recall the
specifics of Ambrosini’s remarks, but he thought that Ambrosini indicated either that plaintiff
5
For reasons that are not clear, Commissioner Zimmerlink did not vote in the matter.
Portions of Cordaro’s deposition are set forth in the record at defendants’ Exhibit LL (ECF No. 64-38) and
plaintiff’s Exhibit A (ECF No. 71-1).
6
10
needed to attend anger management classes or had already done so. (Id. at 20:1-13, 22:2-4, 23:57.) After speaking with Ambrosini, Coradaro reported the information back to plaintiff. (Id. at
13:20-23.) Cordaro did not speak to anyone else about his conversation with Ambrosini except
for his wife, Linda Cordaro, who is presently a judge on the Fayette County Court of Common
Pleas. (Id. at 13:22-14:2, 21:12-18.) Cordaro stated that Ambrosini’s remarks did not affect his
view of plaintiff in any way. (Id. at 14:19-15:1.)
Mahoney also made contact with Ambrosini (and with Zapatosky) on plaintiff’s behalf.
(Mahoney Dep. at 13:6-9).7 Mahoney understood that plaintiff had been suspended due to “a
misunderstanding with a local magistrate.” (Id. at 13:10-14.) Mahoney asked Ambrosini “what
was going on with Tommy and his boss downstairs.” (Id. at 14:10-12.) Ambrosini replied that
there was “a mix up between the two of them ... with the magistrate,” and that “there wouldn’t be
a conclusion until Tommy went to anger management classes.” (Id. at 14:12-17.) Upon
speaking with Zapatoski, Mahoney received the “same assurance that nothing would go on” and
plaintiff “would have his job,” but he “had to complete the anger management course.” (Id. at
15:15-16:2.) Mahoney perceived that both Ambrosini and Zapatosky “thought that [plaintiff
was] in anger management, they were waiting for the anger management to be over and it would
be rectified.” (Id. at 25:9-13.) Following these conversations, Mahoney reported back to
plaintiff and “reassured him that [Mahoney did not] think[plaintiff was] going to lose his job and
that they had said as long as he went to the anger management classes that things should work
out.” (Id. at 17:11-15.) When Mahoney imparted this information, plaintiff was “just thankful
that [Mahoney] talked to them about it.” (Id. at 17:18-22.) Unlike Cordaro, Mahoney testified
7
Portions of Mahoney’s deposition are set forth in the record at defendants’ Exhibit KK (ECF No. 64-37) and
plaintiff’s Exhibit B (ECF No. 71-1).
11
that the information he learned about plaintiff did affect his view of plaintiff in a negative way
because “attorneys are supposed to have level heads.” (Id. at 22:8-22.)
Following his termination, plaintiff commenced this lawsuit. After extensive pretrial
proceedings, plaintiff filed his Third Amended Complaint (“TAC,” ECF No. 44), the operative
pleading in this matter. Counts I (violation of plaintiff’s federal due process rights) and II
(defamation of character) of the TAC assert claims against Ambrosini in his personal capacity.
Count III of the TAC asserts a claim against the County for alleged violation of the Equal Pay
Act, 29 U.S.C. §206(d)(1).
Defendants filed the instant motion (ECF No. 61) on July 18, 2015, seeking summary
judgment on all three counts. The parties submitted their respective materials in support of, and
in opposition to, the pending motion. (ECF Nos. 62-64, 70-76.) As a result, the issues are
sufficiently joined and ripe for resolution.
III. Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
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.” The moving party has the initial burden of proving to
the district court the absence of evidence supporting the nonmoving party's claims. Celotex
Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir.2007);
UPMC Health System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The
burden then shifts to the nonmovant to come forward with specific facts showing a genuine issue
for trial. Fed. R. Civ. P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460–61
(3d Cir. 1989) (the nonmovant must present affirmative evidence ‒ more than a scintilla, but less
than a preponderance ‒ which supports each element of his claim to defeat a properly presented
12
motion for summary judgment). The nonmoving party must go beyond the pleadings and show
specific facts by affidavit or by information contained in the filed documents (i.e., depositions,
answers to interrogatories and admissions) to meet his burden of proving elements essential to
his claim. Celotex, 477 U.S. at 322; see Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001). The nonmoving party “ʻmust present more than just bare assertions, conclusory
allegations or suspicions to show the existence of a genuine issue.ʼ” Garcia v. Kimmell, 381 F.
App'x 211, 213 (3d Cir.2010) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d
Cir.2005)).
When considering a motion for summary judgment, the court is not permitted to weigh
the evidence or to make credibility determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both genuine and material. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must consider the evidence, and all
reasonable inferences which may be drawn from it, in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see El v.
SEPTA, 479 F.3d 232, 238 (3d Cir.2007).
IV. Discussion
A. Plaintiff’s Claim Under 42 U.S.C. §1983 (Count I)
In Count I of the TAC, plaintiff asserts a claim against Ambrosini in his personal capacity
under 42 U.S.C. §1983. This statute provides a private right of action as against: “[e]very
person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ...
subjects ... any citizen of the United States ... to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws….” 42 U.S.C. §1983. “[T]o state a claim
under section 1983 a plaintiff ‘must allege the violation of a right secured by the Constitution
13
and laws of the United States, and must show that the alleged deprivation was committed by a
person acting under color of state law.’” Lomax v. U.S. Senate Armed Forces Serv. Comm., 454
F. App'x 93, 95 (3d Cir. 2011) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). Because there is
no dispute that Ambrosini was acting under color of state law, the court’s analysis will focus on
whether plaintiff adduced evidence of a constitutional violation.
Here, plaintiff claims that Ambrosini violated his rights under the Fourteenth Amendment
to the U.S. Constitution, which prohibits the states from “depriv[ing] any person of life, liberty,
or property, without due process of law.” U.S. Const. amend. XIV, §1. To successfully state a
procedural due process violation, “a plaintiff must allege that (1) he was deprived of an
individual interest that is encompassed within the Fourteenth Amendment's protection of ‘life,
liberty, or property,’ and (2) the procedures available to him did not provide ‘due process of
law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d Cir.2006) (quoting Alvin v.
Suzuki, 227 F.3d 107, 116 (3d Cir.2000)); see Emigh v. Steffee, Civil Action No. 08–1726, 2009
WL 1472916, at *10 (W.D. Pa. May 27, 2009).
With respect to the first element of his claim, plaintiff alleges that Ambrosini deprived
him of a protected liberty interest by stating that he had attended, or needed to attend, an anger
management classes. “[T]o make out a due process claim for deprivation of a liberty interest in
reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional
right or interest,” Hill, 455 F.3d at 236 (citing Paul v. Davis, 424 U.S. 693, 701 (1976)), a
standard commonly referred to as the “stigma-plus” test. “ʻIn the public employment context,
the “stigma-plus” test has been applied to mean that when an employer “creates and disseminates
a false and defamatory impression about the employee in connection with his termination,” it
deprives the employee of a protected liberty interest.ʼ” Id. (quoting Codd v. Velger, 429 U.S.
14
624, 628 (1977)). In such a scenario, “the ‘creation and dissemination of a false and defamatory
impression is the stigma, and the termination is the plus. When such a deprivation occurs, the
employee is entitled to a name-clearing hearing.’” Brown v. Montgomery Cty., 470 F. App'x 87,
91 (3d Cir. 2012) (quoting Hill, 455 F.3d at 236) (additional internal quotation marks omitted).
Defendants argue that plaintiff’s stigma-plus claim fails for several reasons. First, they
contend that Ambrosini’s alleged statements do not provide the necessary stigma. Second, they
argue that even if stigma is established, plaintiff’s due process claim cannot proceed against
Ambrosini personally, because Ambrosini did not terminate plaintiff from his job. Third,
defendants maintain that the County’s investigation and termination proceedings provided
plaintiff all the due process to which he was entitled.
Plaintiff contends that summary judgment should be denied because the evidence in this
case shows that plaintiff was terminated without being afforded his due process rights of a nameclearing hearing. More specifically, plaintiff argues that he was never made aware of
Ambrosini’s statements about plaintiff attending anger management classes until after his
meeting with Carnicella had already occurred; therefore, he was never given an opportunity to
address “this fabricated ground for termination.” (Pl.’s Br. Opp. Mot. Summ. J. at 14, ECF No.
72.)
In reply, defendants argue that plaintiff’s request for a name-clearing hearing is
misplaced. While defendants agree that the point of a name-clearing hearing is to “allow[ ]
Plaintiff an opportunity to refute the reason for his termination,” (Defs.’ Reply Br. in Supp. Mot.
Summ. J. at 8, ECF No. 73), they maintain that plaintiff’s termination stemmed from the June 27,
2013 incident with Magistrate Haggerty and, as to that matter, plaintiff received adequate due
process.
15
Upon careful consideration of the parties’ respective positions and the evidence in this
case, the court finds that defendants’ argument is well taken. In the public employment context,
a stigma-plus due process claim “is premised on an alleged harm to a public employee's liberty
interest in her reputation caused by her public employer's adverse employment action.” Berkery
v. Wissahickon Sch. Bd., 99 F. Supp. 3d 563, 572 (E.D. Pa. 2015), aff'd sub nom. Berkery v.
Wissahickon Sch. Dist. Bd. of Directors, No. 15-1845, 2015 WL 5829901, --- F. App’x --- (3d
Cir. Oct. 7, 2015) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 235 (3d Cir.2006))
(emphasis added). Accordingly, “[t]o establish entitlement to a ‘name-clearing hearing,’ the
aggrieved employee must show: 1) the public employer’s reasons for the discharge stigmatized
the employee by seriously damaging his standing and association in the community or by
foreclosing employment opportunities that may otherwise have been available; 2) the public
employer made the reason or reasons public;[ ] and 3) the employee denied the charges that led
to the employee’s firing.” Bogardus v. Maloney, No. Civ. A. 03-1173, 2004 WL 2091477, at *3
(E.D. Pa. Sept. 16, 2004) (emphasis supplied) (internal footnoted omitted)(citing Gibson v.
Caruthersville School Dist. No. 8, 336 F.3d 768, 773 (8th Cir.2003)). In this case, however,
plaintiff’s due process claim is not premised on reputational harm stemming from the County’s
adverse employment action or its stated reasons for the termination. Here, the undisputed
evidence establishes that plaintiff was terminated for making disrespectful comments to
Magistrate Haggerty in the course of the June 27, 2013 incident. Notably, plaintiff did not
identify any false statements on the part of Ambrosini concerning the June 27, 2013 incident that
could have stigmatized him for purposes of a stigma-plus claim.
Instead, plaintiff attempts to state a stigma-plus claim by positing that Ambrosini
damaged his reputation when he made stigmatizing references to plaintiff attending anger
16
management classes; however, this theory fails to demonstrate an actionable due process
violation. This court previously observed that “there must be a sufficient causal connection
between the allegedly stigmatizing statements, and the loss of the constitutionally protected right
or status in order to qualify for relief under the stigma-plus test.” Kahan v. Slippery Rock Univ.
of Pa., 50 F. Supp. 3d 667, 711 (W.D. Pa. 2014) (citing D&D Assoc., Inc. v. Bd. of Educ. of
North Plainfield, 552 F. App’x 110, 114 (3d Cir. 2014)); see Sullivan v. State of New Jersey, Div.
of Gaming Enforcement, 602 F. Supp. 1216, 1222 (D.N.J. 1985) (noting that the stigma-plus
cases “hold that a liberty interest is implicated if the defamation, in addition to injuring
reputation, also causes the loss of some legally protected right or status”) (emphasis supplied).
Assuming that plaintiff’s discharge is the relevant “loss” or “plus” factor, the facts of record do
not support a causal connection between the allegedly stigmatizing statements and the alleged
“plus.” As noted, when the evidence of record is fairly construed in the light most favorable to
plaintiff, there can be no genuine dispute about the fact that plaintiff was terminated not because
of Ambrosini’s misperception that plaintiff had attended (or was attending) anger management
classes, but because plaintiff had made disrespectful comments to Magistrate Haggerty during
the June 27, 2013 incident. Thus, the evidence here does not support a finding that the plaintiff’s
loss of employment was the result of Ambrosini’s stigmatizing statements. See Stehney v. Perry,
806, 821 (D.N.J. 1995) (noting that, to show a liberty interest under a stigma-plus theory, a
plaintiff must show (among other things) that “the government changed [his] employment status”
and “the change occurred as a result of derogatory allegations that created a stigma on the
plaintiff”)(citing Siegert v. Gilley, 500 U.S. 226, 233-34 (1991)) (emphasis added), aff’d, 101
F.3d 925 (3d Cir. 1996).
17
Assuming that plaintiff is basing his stigma-plus claim on a different “plus” factor, e.g.,
the loss of future employment, his claim is deficient for failure to demonstrate the requisite harm.
“Although the deprivation of the ‘liberty to pursue a calling or occupation’ or to ‘earn a living’
have been deemed sufficient to satisfy the plus prong, a generalized ‘possible loss of future
employment opportunities,’ and ‘financial harm’ are insufficient to support a reputation-based
due process claim.” Kahan, 50 F. Supp. 3d at 711 (citing Simpson v. Nicklas, 500 F. App’x 185,
188 (3d Cir.2012) (citing Clark v. Twp. of Falls, 890 F.2d 611, 620 (3d Cir. 1989), and Sturm v.
Clark, 835 F.2d 1009, 1013 (3d Cir.1987)); see Thomas v. Independence Twp., 463 F.3d 285,
297 (3d Cir. 2006); see also Hill v. Borough of Kutztown, 455 F.3d at 225, 232–33 (3d Cir.
2006); Arneault v. O'Toole, 513 F. App’x 195, 198–99 (3d Cir.2013) (loss of possible business
prospects by being required to disclose an unfavorable fact on future applications does not satisfy
the plus prong)). Here, plaintiff did not show that he has been shut out of the legal profession; at
most, he adduced evidence only of a generalized threat of lost future employment opportunities.
There is insufficient evidence of record to support an actionable stigma-plus claim.
Based upon the unique facts of this case, it is difficult to see what purpose a nameclearing hearing would serve. In Codd v. Velger, 429 U.S. 624 (1977), the Supreme Court
observed that, “if the hearing mandated by the Due Process Clause is to serve any useful
purpose, there must be some factual dispute between an employer and a discharged employee
which has some significant bearing on the employee's reputation.” Id. at 627. In this case, there
is presently no apparent factual dispute between the County and plaintiff concerning plaintiff’s
attendance at, or need for, anger management classes. The evidence does not support a finding
that Ambrosini’s allegedly stigmatizing remarks had a “significant bearing” on plaintiff’s
reputation. There is no evidence to suggest that Ambrosini made remarks about plaintiff
18
attending anger management classes to anyone other than Cordaro and Mahoney, and Cordaro
expressly denied that the remarks affected his view of plaintiff. The lack of a wider audience
relates to the fact that Ambrosini spoke to Cordaro and Mahoney about plaintiff’s employment
situation only after plaintiff had specifically requested that Coradaro and Mahoney speak to
Ambrosini on his behalf. In any event, however, there is no dispute that both Cordaro and
Mahoney personally reported the substance of their conversations with Ambrosini to plaintiff
and, therefore, to the extent any false and stigmatizing information was imparted by Ambrosini,
plaintiff had an ample opportunity to correct such misinformation at the time it was reported by
Cordaro and Mahoney.
Based upon all the foregoing considerations, the court concludes that plaintiff’s due
process claim is insufficient as a matter of law. Accordingly, the defendants’ motion for
summary judgment will be granted with respect to Count I of the TAC.
B. Plaintiff’s Claim Under the Equal Pay Act (Count III)
In Count III of the TAC, plaintiff asserts a claim against the County for alleged violations
of the Equal Pay Act (“EPA” or the “Act”), 29 U.S.C. §206(d). The Act provides that:
[n]o employer having employees subject to any provisions of this section shall
discriminate, within any establishment in which such employees are employed,
between employees on the basis of sex by paying wages to employees in such
establishment at a rate less than the rate at which he pays wages to employees of
the opposite sex in such establishment for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are performed
under similar working conditions, except where such payment is made pursuant to
(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings
by quantity or quality of production; or (iv) a differential based on any other
factor other than sex: Provided, That an employer who is paying a wage rate
differential in violation of this subsection shall not, in order to comply with the
provisions of this subsection, reduce the wage rate of any employee.
29 U.S.C.A. § 206(d)(1) (West).
19
Plaintiff’s claim under the EPA is evaluated according to a “two-step burden-shifting
paradigm.” Johnson v. Fed. Express Corp., 604 F. App'x 183, 187 (3d Cir. 2015), reh'g denied
(Apr. 13, 2015). “The plaintiff must first establish a prima facie case by demonstrating that
employees of the opposite sex were paid differently for performing ‘equal work’—work of
substantially equal skill, effort and responsibility, under similar working conditions.” Stanziale
v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000). In determining whether two jobs involve equal
work, the court must first determine “whether ‘a significant portion of the two jobs is identical.’”
Johnson, 604 F. App'x at 187 (quoting Brobst v. Columbus Servs. Int'l, 761 F.2d 148, 156 (3d
Cir.1985)). “‘The inquiry then turns to whether ... differing or additional tasks make the work
substantially different.’” Id. (quoting Brobst, 761 F.2d at 156) (ellipsis in the original).
“If the plaintiff establishes her prima facie case, ‘[t]he burden of persuasion then shifts to
the employer to demonstrate the applicability of one of the four affirmative defenses specified in
the [EPA],’ which include ‘(i) a bona fide seniority system, (ii) a merit system, (iii) a system
which measures earnings by quantity or quality of production, or (iv) a differential based on any
factor other than sex.’” Johnson, 604 F. App’x at 187 (quoting Stanziale, 200 F.3d at 107 & n. 6
(emphasis in original)) (alterations in the original). In order to prevail at the summary judgment
stage on the basis of an affirmative defense, the employer must prove its defense “‘so clearly that
no rational jury could find to the contrary.’” Id. at 187-88 (quoting Stanziale, 200 F.3d at 107
(internal quotation marks omitted)).
In this case, plaintiff’s EPA claim is premised on the fact that, during the years 2012 and
2013, he was paid less than Linda Cordaro (“Attorney Cordaro”), then an assistant district
attorney for Fayette County serving as Child Abuse Prosecutor.8 (See TAC ¶¶ 38-41.) It is
8
The Hon. Linda Cordaro now serves as a judge on the Fayette County Court of Common Pleas.
20
undisputed that, during the time period in question, Attorney Cordaro was paid $32,896.50,
while plaintiff earned a salary of $25,896.00. (PCSMF ¶23.) It is also undisputed that the
County’s Salary Board9 sets pay scales for all county employees, both professional and
nonprofessional. (Id.) Plaintiff complained about this discrepancy during a 2012 meeting of the
Salary Board (PCSMF ¶23), but he maintains that no action was ever taken by the County to
address the disparity.
Defendants contend, and this court agrees, that plaintiff’s comparator evidence is
insufficient as a matter of law to establish a prima facie violation of the EPA. The evidence
shows that, based upon pay studies performed by the County’s human resources department in
2007, the County “revamped” the pay scales of both union and nonunion employees “according
to class, tenure, longevity and things of that nature.” (Lally Dep. at 10:10-25.)10 Following this
process, the positions of Assistant Public Defender and Assistant District Attorney were both
classified as Pay Grade 9 non-supervisory positions. (DCSMF ¶¶ 52-53.) During a Salary Board
meeting on March 28, 2012, however, the Fayette County District Attorney, Jack Heneks, moved
to create the position of Child Abuse Prosecutor Assistant District Attorney, and the Salary
Board unanimously agreed. (DCSMF ¶¶ 55, 58; Defs.’ Ex. SS at 6, ECF No. 64-45.) Minutes
from the meeting reflect that District Attorney Heneks reported “Linda has been doing the
position ... for the last 2 years and has not been receiving the compensation for the work,” and
the funding for the position was “in his budget.” (Defs.’ Ex. SS at 6.) The position of Child
Abuse Prosecutor is one step below that of Administrative Assistant Attorney on the non-union
ADA Scale, making it a Pay Grade 10 supervisory position. (DCSMF ¶¶ 55, 60.) Once
9
The Salary Board is comprised of the three County Commissioners and the County Controller. (DCSMF ¶48.) See
also PA. STAT. §1622 (West).
10
Portions of Sean Lally’s deposition are set forth in the record as defendants’ Exhibit NN (ECF No. 64-40) and
plaintiff’s Exhibit E (ECF No. 71-2).
21
Attorney Cordaro filled the position of Child Abuse Prosecutor, she began earning a salary of
$32,584.00. (DCSMF ¶59.)
Although plaintiff argues that Cordaro and he performed “equal work” in their respective
positions as Assistant Public Defender and Child Abuse Prosecutor, the record does not support
this conclusion. As noted above, “equal work” involves “work of substantially equal skill, effort
and responsibility, under similar working conditions.” Stanziale, 200 F.3d at 107. Here, plaintiff
alleged in the TAC that both he and Attorney Cordaro handled magisterial cases on a weekly
basis, prepared and tried criminal cases, negotiated plea deals, presented pleas and sentencings,
and handled motions, pretrial conferences, and the like. (TAC ¶41.) Plaintiff failed to present
evidence to support these allegations11 but, even if they are accepted at face value, this would not
end the court’s inquiry. Assuming that “‘a significant portion of the two jobs is identical,’”
Johnson, 604 F. App'x at 187 (quoting Brobst, 761 F.2d at 156), the court must still consider
“‘whether ... differing or additional tasks make the work substantially different.’” Id. (quoting
Brobst, 761 F.2d at 156) (ellipsis in the original).
Based upon the uncontroverted facts of record, this court concludes that plaintiff’s job as
an assistant public defender differed in important respects from Attorney Cordaro’s job as Child
Abuse Prosecutor such that no reasonable jury could conclude that plaintiff and Attorney
Cordaro were paid disparately for substantially “equal work.” Under Pennsylvania law, assistant
public defenders serve at the pleasure of the Chief Public Defender, while assistant district
attorneys serve at the pleasure of the District Attorney. See 16 PA. STAT. §3450(b) (“Appointees
to county offices or positions other than to elected offices shall be subject to removal at the
pleasure of the appointing power, except as otherwise provided by law….”). As the court’s
11
At the summary judgment stage, a nonmoving plaintiff “may not rest upon mere allegation or denials of his
pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986) (citing former Fed. R. Civ. P. 56(e)).
22
discussion of background facts demonstrates, each office operates in accordance with its own
policies and budgetary constraints. Within Fayette County, as is commonly the case, the District
Attorney’s office handles virtually all the criminal prosecutions from the preliminary hearing
stage forward, whereas the public defender’s office handles only that portion of the criminal
matters that do not involve privately retained counsel or pro se defendants. (Jin Dep. at 29:1725.)12 Within the office of the District Attorney, assistant prosecutors might be called upon to
handle a variety of cases at the preliminary hearing stage, but once a case is bound over for
proceedings in the Court of Common Pleas, office policy requires that a particular type of case,
such as a drug case or a child abuse case, be assigned to the assistant district attorney
specializing in that area. (DCSMF ¶¶ 65-66.) Consequently, Attorney Cordaro’s job required
her to handle the majority of child abuse cases that were prosecuted by the District Attorney’s
office, whereas plaintiff’s position involved a more varied and nonspecialized caseload.
(DCSMF ¶¶ 61, 66.)
These facts demonstrate that plaintiff and Attorney Cordaro labored under substantially
different working conditions. Plaintiff attempts to prove otherwise by citing the deposition
testimony of Assistant District Attorney Michelle Kelly, but his efforts in this regard consist of
nothing more than conclusory assertions that mischaracterize Kelly’s testimony or are otherwise
unsupported by the record. (See Pl.’s Br. Opp. Mot. Summ. J. at 17, ECF No. 72.) Accordingly,
insofar as similarity of working conditions is concerned, plaintiff did not point to evidence in the
record that demonstrates the existence of a genuine issue of material fact.
In addition, plaintiff failed to demonstrate that Cordaro’s job and his job required
substantially equal skill. As discussed, Attorney Cordaro specialized in child abuse cases and
was assigned a higher concentration of those matters than her fellow prosecutors. (Id. ¶66.)
12
Portions of Phyllis Jin’s deposition are set forth in the record as defendants’ Exhibit MM (ECF No. 64-39.)
23
There can be no dispute that, because those cases involve crimes perpetrated against children,
they are often emotionally difficult to handle. (Id. ¶72.) In addition, those cases require the
prosecutor to have an understanding of how to effectively interview child victims and witnesses
without tainting their testimony, given the disparities that can exist among children relative to
their ages and their abilities to accurately articulate information. (Id. ¶70.) Ambrosini testified
that the position of Child Abuse Prosecutor was much needed in the County (see DCSMF ¶67),
and Attorney Cordaro was appointed because she possessed the skills required of the position.
(Id. ¶73.) This conclusion is buttressed by the fact that Attorney Cordaro had reportedly been
performing the job for two years prior to her appointment. (Defs.’ Ex. SS at 6.) Although
plaintiff insists that his skills as a lawyer were generally equal or superior to those of Attorney
Cordaro, this assertion, even if true,13 misses the point. The relevant inquiry is not whether
plaintiff was a better or more experienced lawyer, but whether his job was substantially equal to
Attorney Cordaro’s in terms of the particular skills required. The evidence in this case shows it
was not. While plaintiff posits that he has defended numerous child abuse cases over the course
of his career, there is no evidence to suggest that his position as an assistant public defender
required him to interact with children in the same manner, and with the same frequency, as was
required of the Child Abuse Prosecutor. Accordingly, plaintiff did not show that Attorney
Cordaro and he performed work that required substantially similar skills.
In addition, the evidence shows that Attorney Cordaro’s position involved tasks and
responsibilities that were substantially different from those required of an assistant public
13
Plaintiff posits that, because he has “tried twice as many cases” as Attorney Cordaro, it can fairly be inferred that
“he has done a vast amount more sexual assault type cases than Comparator Cordaro.” (Br. Opp. Mot. Summ. J. at
18, ECF No. 72.) Plaintiff represents that, in one particular case, he amassed over 1300 hours of billed time which,
he claims, is “vast[ly] more hours expended than all other cases combined of Comparator Cordaro.” (Id.) Aside
from being irrelevant, these self-serving assertions are unaccompanied by any citations to evidence in the record.
Accordingly, they provide no meaningful support for plaintiff’s EPA claim.
24
defender. As a general matter, prosecutors and public defenders have fundamentally different
roles in the criminal justice system; unlike a prosecutor, who represents the state’s or the public’s
interests, a public defender is essentially “state paid private counsel, assigned the responsibility
of protecting the interests and defending the rights of a client.” Brown v. Joseph, 463 F.2d 1046,
1048 (3d Cir. 1972). In Fayette County, as in other jurisdictions, prosecutors may be called upon
to render legal advice to law enforcement officers during the precharging phase of a case
concerning matters such as the sufficiency of a search warrant or the proper drafting of a
criminal complaint. (DSFMF ¶62.) Plaintiff, by contrast, was not subject to these job
responsibilities, since assistant public defenders are assigned cases only after charges have been
filed. (Id. ¶64.) The evidence points to Attorney Coradaro’s position as Child Abuse Prosecutor
as having carried supervisory responsibilities,14 whereas plaintiff’s position did not. (See
DCSMF ¶¶ 53, 60.) Finally, as previously noted, Attorney Cordaro’s job required her to handle
a higher concentration of child victim crimes than plaintiff was required to handle in his capacity
as an assistant public defender. Given these substantial differences in the comparative job
responsibilities of the Assistant Public Defender position and the Child Abuse Prosecutor
position, plaintiff cannot establish a prima face claim under the EPA.15
14
This court is mindful that, insofar as Attorney Cordaro’s supervisory responsibilities are concerned, the contents
of a job description are not necessarily controlling. See Brobst v. Columbus Servs. Int'l, 761 F.2d 148, 155 (3d Cir.
1985) (“As our opinions show, the relevant issue is not the name under which the position was classified but what
was actually done.). Here, however, the record is devoid of any probative evidence concerning Attorney Cordaro’s
supervisory responsibilities beyond the job description for her position. Plaintiff attempts to cast doubt on this point
by citing the testimony of Assistant District Attorney Michelle Kelly; however, Ms. Kelly merely testified that she
did not understand her own job position (i.e., Senior Assistant District Attorney) to carry any supervisory
responsibilities. (See Kelly Dep. at 43:23-44:11, ECF No. 71-2.) Such evidence has no probative value as it relates
to the supervisory responsibilities of Attorney Cordaro. Plaintiff also posits that, “because Comparator Cordaro was
the sole ADA who was given the title Sexual Assault Prosecutor and no one worked under her or at her direction,
...she never supervised anyone and the title is just that – a title whereby discrimination is prohibited under the Equal
Pay Act.” (Pl.’s Br. Opp. Mot. Summ. J. at 19, ECF No. 72.) However, this assertion is mere conjecture
unsupported by any evidence in the record.
15
Once again, plaintiff’s proffer with respect to this prima facie element is insufficient to demonstrate the existence
of a genuinely disputed issue of material fact. In attempting to establish similarities between his own work and
25
Even if plaintiff had established a prima facie case, however, the court would still
conclude that summary judgment is appropriate because the unrebutted evidence shows that
Attorney Cordaro’s pay level was determined through considerations other than gender. As
discussed, Cordaro’s position as Child Abuse Prosecutor was a Grade 10, supervisory position,
as opposed to plaintiff’s Grade 9, nonsupervisory position. The evidence shows that the Child
Abuse Prosecutor position was created upon the specific request of the District Attorney, and
with approval of the Salary Board, based on a perceived need for the position. Following
Attorney Cordaro’s resignation from that job, a male attorney was appointed to replace her.
(DCSMF ¶75.) In short, the evidence shows that the Salary Board assigned the pay scale for the
Child Abuse Prosecutor position based upon factors other than gender, and no reasonable jury
could conclude otherwise.16 Summary judgment will therefore be entered in favor of the County
relative to the EPA claim in Count III.
C. Plaintiff’s Claim for Defamation Under Pennsylvania Law (Count II)
After judgment is entered as set forth above, only one claim remains, namely plaintiff’s
state law claim for alleged defamation of character, which is set forth at Count II of the TAC
(ECF No. 44). A district court may decline to exercise supplemental jurisdiction where the
federal claims are no longer viable. 28 U.S.C. § 1367(c)(3); Trinity Indus., Inc. v. Chicago
Bridge & Iron Co., 735 F.3d 131, 135 (3d Cir. 2013); see Tully v. Mott, 540 F.2d 187, 196 (3d
Cir.1976) (“If it appears that the federal claim [...] could be disposed of on a motion for summary
judgment under F.R. Civ. P. 56, then the court should ordinarily refrain from exercising
Attorney Cordaro’s, plaintiff mischaracterizes Kelly’s testimony and cites to portions of her testimony that are not in
the record. (See Pl.’s Br. Opp. Mot. Summ. J. at 18, ECF No. 72.)
16
Plaintiff cites the deposition testimony of Sean Lally for the proposition that the “Salary Board is nothing but
political patronage,” and [p]eople in the know get raises.” (Pl.’s Br. Opp. Mot. Summ. J. at 72 (citing Lally Dep. at
24-25).) Even if these assertions are credited, they do not advance plaintiff’s EPA claim; on the contrary, they
demonstrate, if anything, that the comparative pay disparities were based on non-gender-related considerations.
26
jurisdiction in the absence of extraordinary circumstances.”). Whether to exercise supplemental
jurisdiction is a decision that is “committed to the sound discretion of the district court.” Queen
City Pizza, Inc. v. Domino's Pizza, Inc., 124 F.3d 430, 444 (3d Cir.1997). The Court of Appeals
for the Third Circuit has held that, where all federal claims are dismissed before trial, “the
district court must decline to decide the pendent state claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an affirmative justification for doing
so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (citations omitted).
In this case, only plaintiff’s state law defamation claim remains pending before the court.
There is no federal interest in deciding this claim, and judicial economy, convenience, and
fairness are not served by this court, instead of the state court, resolving this case. Neither party
will be significantly prejudiced by a dismissal of the defamation claim without prejudice,
because Pennsylvania has enacted a “savings statute,” 42 PA. CONS. STAT. § 5103, pursuant to
which plaintiffs are permitted to file a certified transcript of federal proceedings in a state court
and “the date of institution of the federal suit [serves] as the state court filing date for statute of
limitations purposes, thereby obviating any limitations problems caused by dismissal.” Rashid v.
Kite, 957 F. Supp. 70, 75 (E.D. Pa. 1997); see Weaver v. Marine Bank, 683 F.2d 744, 746 (3d
Cir.1982). If plaintiff chooses to pursue his state law claim in state court, that court will have the
benefit of this opinion, and of the extensive summary judgment filings already prepared by the
parties with respect to the state claims, should it choose to proceed directly to determining
whether the case can be decided as a matter of law. Should there be issues that require
determination by a factfinder, there is no interest in this federal court conducting a trial on
exclusively state-law claims.
27
V. Conclusion
Based upon the foregoing discussion, defendants’ motion for summary judgment will be
granted with respect to plaintiff’s federal claims at Counts I and III of the Third Amended
Complaint and denied with respect to plaintiff’s defamation claim at Count II. Plaintiff’s state
law defamation claim will be dismissed without prejudice so that plaintiff may pursue that claim,
if he so chooses, in state court.
An appropriate order follows.
By the court,
Dated: February 19, 2016
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
28
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