VAY v. HUSTON et al

Filing 279

AMENDED MEMORANDUM re 278 Memorandum. Amended to correct an inadvertent typographical error on Page 18. Nothing in this Amended Memorandum affects our reasoning in support of our December 16, 2016 Order (ECF Doc. No. 277 ). Signed by Judge Mark A. Kearney on 12/16/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KELLY J. VAY

v.
ROBERT HUSTON, et al.

: CIVIL ACTION
:
:
: NO. 14-769
:
:

KEARNEY, J.

December 16, 2016

AMENDED MEMORANDUM1
Social commentators remind us our secular society is becoming increasingly desensitized
to public discourse sprinkled with formerly forbidden curse and slang words. We allow for these
differences but may elect to ignore in the public airwaves and avenues. At work, different rules
apply to ensure the language and conduct is not so severe or pervasive to be considered hostile
and employment actions are not discriminatory based on, among other things, an employee’s
gender. As taxpayers, we may also expect our public officials and servants to be respectful of
their co-workers under the Law at least to the same extent as private workplaces. We are also
aware there are at least two sides to every workplace interaction often driven by personal animus
and poor temper. But reading the facts in the most favorable manner for the former female
public employee terminated as a disciplinary measure, we largely deny the public employer’s
motion for summary judgment in the accompanying Order. We find she exhausted her pre-suit
remedies and her timely claims require the jury evaluating disputed facts of gender
discrimination, retaliation and hostile work environment arising in an apparent male dominated
Allegheny County Medical Examiner’s Office self-described as a “locker room” where “old
timers” “give [attractive women] a really hard time,” and where “the women [co-workers] are
going to be jealous” of them, and the “men are going to be pigs.”

I.

Facts in the light most favorable to Ms. Vay.2

Allegheny County hired Kelly J. Vay at its Medical Examiner’s Office on March 15,
2009.3 During Ms. Vay’s employment, men managed the Medical Examiner’s Office: Stephen
Pilarski served as Manager of Administration from February 2007 to July 20124; Robert Huston
served as Laboratory Director until July 2012, when he took over Manager Pilarski’s role as
Manager of Administration5; Michael Baker served as Director of Morgue Operations from
April 2013 to December 31, 20136; Michael Chichwak served as Manager of Investigations
from March 2011 to July 20147; and, Ms. Vay’s direct supervisors included, among others,
Forensic Supervisors Anthony Bofo and Richard Lorah.

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All but one of Ms. Vay’s forensic

supervisors were male.9
During Ms. Vay’s employment, investigators in the Medical Examiner’s Office noticed
management treated Ms. Vay less favorably than men. Investigator Fred Manno swears he
noticed management had a “vendetta” against Ms. Vay.10 “For example, supervisor Anthony
Bofo could open his mouth expresses [sic] opinions and make suggestions without being
reprimanded or disciplined but if Vay failed to dot every ‘i’ or cross every ‘t’ she would get
yelled at or disciplined.”11 Based on his experience at the Medical Examiner’s Office, “a male
forensic investigator could get away with violating a policy or rule or practice but in the same
circumstances, Kelly Vay would be disciplined.”12 Investigator Curtis Williams swears men
were treated better than women in the Medical Examiner’s Office.13 Investigator Alison Bixby
swears the employer treated men better and with more respect than women.14
Shortly after the County hired Ms. Vay in 2009, Manager Pilarski warned Ms. Vay and
investigator Jennifer Sullivan “as attractive females” they were going to have a “hard way”
ahead of them, but with their backgrounds, they would “be able to take it.”15 Manager Pilarski

2

explained that “old timers” will “give you a really hard time,” “the women are going to be
jealous” of them, and the “men are going to be pigs.”16
Co-workers subjected female investigators including Ms. Vay to sex-based comments.
Employees very commonly engaged in “locker room talk” about female investigators including
comments about their appearance and their clothing choices.17 When Ms. Vay returned to work
in January 2010 following the birth of her daughter, a coworker called Ms. Vay a “c**t” to Ms.
Sullivan and threatened to physically harm Ms. Vay, stating, “If that [c**t] says one more thing, I
swear I’m going to slap her in the face.”18
Ms. Vay’s July 2010 warning and 5-day suspension.
The male Management disciplined Ms. Vay for speaking out against sexist comments. In
July 2010, while Ms. Vay and a male investigator were on a scene call with a large deceased
victim, a police officer on the scene stated women “shouldn’t or can’t do this job” and laughed
because the investigators had to lift the large male.19 Ms. Vay replied women could do the job
and continue to do it on a daily basis.20 Management disciplined Ms. Vay for her conduct on the
scene, giving her a written “oral” warning and advising her to act professionally when
confronted with this situation.21
The County disciplined Ms. Vay in part based on gender-based stereotypes. In July 2010,
Ms. Vay and Ms. Sullivan stopped at a Wal-Mart store to use the bathroom, leaving a body
unattended in the van.22 The Medical Examiner’s Officer had a practice permitting investigators
to leave bodies unattended if an investigator had to use the bathroom, and no rule prohibited this
stop.23 Management charged Ms. Vay and Ms. Sullivan for leaving a body in the van unattended.
Management also charged Ms. Vay with using a County vehicle for allegedly “shopping” at this
Wal-Mart store while on duty.24 Ms. Vay denied shopping.25 After seeking and failing to find

3

video footage proving Ms. Vay had been shopping, Director Huston recommended Ms. Vay be
terminated, and Manager Pilarski told Ms. Vay, “[You] should be grateful that the cameras within
[Wal-Mart] didn’t work, or both you bitches would have been fired.”26 Management insisted Ms.
Vay and Ms. Sullivan must have been shopping, stating, “Well, what else would a female do in
Wal-Mart but shop?”27
The County suspended Ms. Vay for five days for leaving the body unattended and using a
County vehicle for personal use by shopping at Wal-Mart.28 The rule cited in the suspension
letter did not prohibit Mr. Vay’s conduct, but instead provided instructions for using a fuel card to
refuel County vehicles.29
November 2010 physical threat against Ms. Vay and her subsequent 1-day suspension.
In November 2010, a coworker physically threatened Ms. Sullivan and another female
employee.30 Mr. Longo threatened to fight Ms. Sullivan, telling her to “bring it outside, bitch.”31
Mr. Longo then threatened Ms. Vay, stating “You can bring it outside, too . . . . I’m going to kick
both your asses . . . Bring it outside. I’ll kick your ass like a man, too. If that’s how you want to
act, I’ll kick your ass like a man.”32
Director Huston and Manager Pilarski issued the same discipline to Ms. Sullivan and Mr.
Longo, even though they acknowledged Mr. Longo initiated the confrontation.33

Manager

Pilarski told Ms. Vay, “I thought we’d get to fire you on this one . . . we couldn’t . . . . couldn’t.
It’s a good thing we didn’t have voice [recording] because we probably would have been able to
do something.”34
Soon after this incident, Ms. Sullivan complained in writing to the male Management
about having to work in an environment where she and Ms. Vay are threatened, verbally
attacked, and made to feel unsafe and uncomfortable in the workplace.35 Ms. Sullivan and Ms.

4

Vay spoke to Ms. Nicole Nagle in Human Resources, stating they did not feel comfortable with
having Manager Pilarski and Director Huston take part in the investigation.36 They told Ms.
Nagle “Management was ‘attacking us girls.’”37
Management did not address Ms. Sullivan’s complaint, but instead required her to work
with Mr. Longo the next day.38 When Ms. Vay asked Manager Pilarski why Ms. Sullivan
received the same discipline as Mr. Longo, Manager Pilarski put his hand up a few inches from
her face and screamed, “Bitch, this is none of your business. It has nothing to do with you.”39
When Ms. Vay reacted telling Manager Pilarski to get his “hand out of [her] face,” he sent her
home for the rest of the day without pay.40 According to Supervisor Bofo, Manager Pilarski
screamed and yelled at Ms. Vay until she walked out of the building, which he found
unacceptable.41
Derogatory sex-based comments directed toward Ms. Vay.
In May 2011, a male coworker stated Ms. Sullivan and Ms. Vay were dressed like
whores.42 When Ms. Vay complained to Director Huston, he replied, “Do you think you look
like a whore?”43 Management did not discipline any employee for this comment.44
Over the course of a few months in 2011, Ms. Vay and Ms. Sullivan overheard coworkers
referring to their shift as the “c**t crew” on a number of occasions.45 At the time, Ms. Vay’s
shift had four female investigators and one male investigator. 46 Ms. Vay’s supervisor, Supervisor
Lorah, overhead the comment but “blew if off or swept it under the rug” because he “didn’t feel
it was important enough to tell someone about.”47 When Ms. Vay complained to management
about the “c**t crew” comments, either Manager Pilarski or Manager Chichwak asked her,
“[Were you] acting like a c**t?”48 Management did not discipline any employee for making
these comments, and Ms. Vay continued hearing the comment even after she complained.49

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Ms. Vay complains to management.
On July 12, 2011, Ms. Vay sent an email on behalf of herself and two other female
investigators to Manager Pilarski, Director Huston, and Manager Chichwak complaining of
mistreatment.50 Ms. Vay specifically complained about “derogatory statements” including the
“whores” and “c**t crew” slurs against them.51

Ms. Vay also complained of inconsistent

treatment and holding them to different standards compared to other employees.52
On July 19, 2011, after not receiving a response for a week, Ms. Vay forwarded the same
email to Ms. Nagle in Human Resources.53 Ms. Nagle responded to Ms. Vay the following day
stating Manager Pilarski had been looking into their concerns, and assured her Manager Pilarski
would follow up with her following the investigation.54 At some point, Ms. Nagle told Ms. Vay
the investigation had closed, but the results of the investigation were “none of [her] business.”55
Ms. Vay’s September 2011 suspension.
Ms. Vay swears, during 2011, “the tension and stress in the [Medical Examiner’s] Office
was so bad for me and Ms. Sullivan that we were concerned we could be fired at any moment.” 56
According to Ms. Sullivan, the work environment was “stressful all of the time” and “hateful.”57
On September 2, 2011, Ms. Vay and Ms. Sullivan told Manager Pilarski they would not
speak to him without a union representative of their choice because they believed the current
union representative had a bias against them.58

Manager Pilarski locked them out of the

conference room and told them to get out of his face.59 Manager Pilarski then “came storming
up the hallway yelling at” Ms. Vay and Ms. Sullivan, threatened to fire them, and called Ms. Vay
a bitch.60
Management suspended Ms. Vay and Ms. Sullivan following this meeting, stating they
“became very loud, disrespectful, unprofessional and insubordinate in voicing” their opinions.61

6

Ms. Sullivan testified Manager Pilarski’s conduct intimidated her, and she resigned following
this event.62 Ms. Sullivan did not feel she could handle the stress of another meeting.63
Ms. Vay’s March 2012 five-day Suspension.
During 2010 and 2011, Ms. Vay and Ms. Sullivan used their down time to work on
identifying bodies and had set up and identification network, which management initially
supported as a “great idea.”64 On August 19, 2011, however, management warned Ms. Vay and
Ms. Sullivan they would be disciplined if they continued to work on the project.65
On February 27, 2012, Ms. Vay received an email positively identifying the remains of a
body.66 Concerned management may misinterpret the email as if she had continued to work on
the project, she immediately showed and explained the letter to Director Huston.67 Mr. Huston
did not understand Ms. Vay’s explanation, refused to provide Ms. Vay a copy of the document,
and told her she “should have been locked up” because she had voice-recorded prior meetings.68
Director Huston then abruptly walked away.69
After Director Huston walked completely out of the office area, Ms. Vay began a
conversation with a female investigator, stating “this place is full of cowards.”70 Director Huston
heard this remark, came back into the office, and told Ms. Vay to go home.71 Ms. Vay asked for
a reason, but he did not reply.72 Ms. Vay ultimately received a five-day suspension.73
Male employees cursed at male Management but Management would not discipline them.
For example, Mr. Manno swore at management on almost a daily basis.74 He once called
Director Huston a “f**king moron” to Manager Chichwak, but the County never disciplined
him.75 Mr. Manno “said ‘f**k off’ all of the time to management.”76 The County never
disciplined him for this conduct.77

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Supervisor Bofo’s complaint on behalf of Ms. Vay.
The day after Ms. Vay’s March 2012 five-day suspension, Supervisor Bofo sent an email
to Management, including Manager Pilarski, Director Huston, and Manager Chichwak
complaining about the administration’s unfair treatment of Ms. Vay:
I am appalled over the continuous actions that this administration
is taking against Inv. Vay. We have numerous employees that on a
given day do not perform their job functions or perform those
functions poorly and nothing like the discipline what I have seen
with Inv. Vay has happened to others. I have sent numerous
documented emails concerning investigators as well as supervisors
who one [sic] a continuous basis fail to perform their job functions
properly or not at all. Inv. Vay is probably the finest and most
thorough investigator that this office has from veteran employees
to new employees.78
Inv. Vay is well trained . . . . a true asset to this office, and her
professionalism and work ethic speak for themselves. I beleive
[sic], that this office needs to set aside some of its egos and high
personalities, and form a well developed plan to move this office in
the right direction and into modern times. It pains me to sit back
and watch this horrendous chain of events take place from this
administration, and watch the employees who need to be
disciplined sit back and watch the show. I watched this fiasco
unfold from the very beginning . . . . who is going to discipline this
administration for the tactics and bullying it has shown on a
constant basis on some of this office’s finest employees?79
There is no evidence Management responded to Supervisor Bofo’s complaint. At some
point, Manager Pilarski and Director Huston told Supervisor Bofo to stay away from Ms. Vay
because she would “drag him down.”80
March 2012 false accusations.
On March 22, 2012, Management accused Ms. Vay of several work infractions, including
failing to timely enter follow-up information, disclosing confidential information to the media,
and failing to enter a report into the computer system, and directed her to attend a “Loudermill

8

Hearing” on March 30, 2012.81 Ms. Vay describes these accusations as false and misleading, and
the County did not discipline her following the hearing.82
The work environment “continued to be highly stressful” for Ms. Vay and “Management
seemed to target anyone who seemed friendly with me and/or female investigators Allison Bixby
and Melissa Bogoevski.”83
Letter to the County Executive draws media attention.
On April 5, 2013, Ms. Vay sent a letter to County Executive Rich Fitzgerald, complaining
about a lack of trust between operations/investigations and management, stemming from “a long
history of preferential treatment, discrimination, negligence, and complete disregard for the
citizens of Allegheny County.”84 Ms. Vay also sent her letter to the media. On April 8, 2013, the
Tribune Review published an article entitled, “Investigators claim ‘lack of trust’ in medical
examiner’s office.”85 Management believed Ms. Vay had been “behind” the article.86
Ms. Vay’s 2013 verbal and written reprimands.
In April 2013, Director Baker began as Manager of Operations in the Medical Examiner’s
Office.87 Although he had a sign-up sheet to speak with all of the investigators, Director Baker
did not include Ms. Vay.88
On May 10, 2013, Director Baker charged Ms. Vay with violating a policy prohibiting
interns from entering a crime scene.89 Ms. Vay received a verbal reprimand for this offense.90
Ms. Bogoevski characterized the policy regarding interns as “very unclear” due to the lack of a
standard operating procedure and mostly depending on the supervisor on duty.91 Management
did not discipline male investigators for taking interns into a crime scene unless the male
investigator and Ms. Vay were associated.92 For example, Mr. Williams and Mr. Manno took

9

interns into a scene but Management never disciplined them, even though the interns appeared in
crime scene photographs.93
Director Baker also charged Ms. Vay with violating the crime scene drug policy because
she did not deliver medicine from the scene to the Medical Examiner’s Office. 94 Ms. Vay
received a written reprimand for this offense.95 Ms. Bogoevski described the crime scene drug
policy as “Unclear, because it changed a lot. . . . You would ask the supervisors. They didn’t
know, so there was never a clear understanding.”96 Male investigators who did not bring back
medication were only disciplined if they accompanied Ms. Vay.97
In 2013, Director Baker asked investigators to bring in medications or drugs found near a
crime scene body but not to count the number of pills in a medication bottle.98 This posed an
issue because a police officer or detective at the scene would not sign the evidence bag without
counting the medication.99 Ms. Vay raised this issue during a meeting with the investigators, and
Director Baker—instead of discussing the issue—responded she would be disciplined if she
counted the pills.100
Second letter to the County Executive gets media attention.
On August 1, 2013, the investigators in the Medical Examiner’s Office sent another letter
to County Executive Fitzgerald, indicating the County and Management has not addressed the
issues described in their April 2013 letter.101 They stated the “department remains without any
formal Standard Operating Procedures, which has led to further discrimination and preferential
treatment.”102 Two days letter, the Pittsburgh Tribune published an article regarding the letter
entitled, “Allegheny County’s autopsy office called lax.”103
On August 9, 2013, Director Huston sent an email to the investigators regarding the letter
and newspaper article and invited employees to approach him or Director Baker “about any

10

concerns you have about the operations of the office. Our doors have always been open to
you.”104
Ms. Vay’s August 2013 26-day suspension.
On August 9, 2013, Ms. Vay had a meeting with Ms. Bogoevski and Director Baker.105
Director Baker confronted Ms. Bogoevski and Ms. Vay “from his desk screaming” about a work
issue relating to an email from Director Huston.106 Ms. Vay asked Director Baker if Director
Huston could come to the office and clarify what he meant in his email, but instead Director
Baker told her to leave the building altogether, which she did.107 As Ms. Vay left, she opened the
door and the handle struck the wall causing a hole where there had been a previous
indentation.108 Ms. Vay did not intend to cause this damage.109 Even so, Director Baker charged
Ms. Vay with “disorderly conduct” and “causing property damage to a county facility” for this
incident.110 Ms. Vay ultimately received a 26-day unpaid suspension for this incident.111 She
also signed a “last chance agreement” admitting she violated work rules.112 She specifically
admitted to causing property damage and behaving “in a disorderly manner with the Manager of
Operations in his office and in other areas of the building, resulting in the employee being
directed to leave the workplace.”113
The County did not discipline other employees allegedly engaging in property damage.
Mr. Manno admits he once inadvertently poked a hole in a GPS unit with a pencil, but he never
received discipline about it even though his supervisors knew he did it.114
The County also did not discipline at least one other employee for engaging in conduct
which could be characterized as disorderly.

According to Ms. Bogoevski, during her

probationary period in 2012,
[Mr.] Manno had a tantrum, which everybody in the office
apparently is used to. . . . I was scared shitless. I was brand new.

11

Never came from an office where it was okay for anybody, male or
female to yell, throw things, scream, cuss, slam down phones. Yet
. . . here I am being exposed to this type of childish behavior by a
male, Fred Manno, and [Forensic Supervisor] Richard Lorah
comes over to my desk and says, It’s okay, he does this every day.
You’ll get used to it. You’re lucky he’s not throwing things such as
scissors.115
The County places Ms. Vay on paid administrative leave.
On November 23, 2013, Mr. Longo began working on a complicated case at the end of
his shift.116

Mr. Longo handed the case over the Supervisor Lorah, who asked both Ms.

Bogoevski and Ms. Vay—before their shifts started—if they “wanted” to take the case.117 Both
declined, but Supervisor Lorah left the case on the back of Ms. Bogoevski’s chair.118 Ms. Vay
and Ms. Bogoevski then worked on the case, completing all necessary paperwork.119
Unbeknownst to Ms. Vay or Ms. Bogoevski, Supervisor Lorah complained to Manager
Chichwak and Director Baker, accusing them of being disrespectful.120 On November 30, 2013,
Management ordered Ms. Vay and Ms. Bogoevski to appear at a Loudermill hearing on
December 2, 2013.121 Before the hearing, Director Huston created a plan for escorting Ms. Vay
outside of the building to be fired immediately after the hearing and emailed the plan to Manager
Pilarski and Director Baker.122 Director Huston also sent a separate email to Manager Pilarski
asking for Ms. Vay’s email account to be preserved and stating, “As you are aware, Ms. Kelly
Vay will be terminated today following her Loudermill hearing.”123

Management also

preemptively drafted a termination letter which purported to be based on the findings of the
Loudermill hearing.124
At the Loudermill hearing, Ms. Vay and Ms. Bogoevski showed Director Baker an email
from Supervisor Lorah recanting his insubordination charges.125 Ms. Bogoevski also showed
Director Baker evidence she and Ms. Vay completed the work.126 In response, Director Baker

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became angry, rose up, came halfway across the table at Ms. Vay and Ms. Bogoevski, and started
yelling.127 Director Baker’s outburst frightened Ms. Vay and Ms. Bogoevski.128 The union
representative called for a break in the meeting and Director Baker stormed out of the room to
Director Huston.129 When Director Baker returned, he declared the hearing over.130 Ms. Vay
returned home.
Shortly after the hearing, Mr. Williams saw Director Huston angrily “ranting and raving”
about what had happened.131 Mr. Curtis heard Director Huston say, in reference to Ms. Vay,
“[S]he’s not coming back into this office. I don’t care what I have to do, but she will not step
foot in this office again.”132
The following day, Ms. Vay received a letter from Director Baker stating the Medical
Examiner’s Office would not pursue discipline against Ms. Vay for the alleged violations, but
Ms. Vay “will remain on paid administrative leave until further notice.” 133 The letter did not
provide a reason for placing Ms. Vay on paid administrative leave. 134 No one ever told Ms. Vay
why Director Baker placed her on paid administrative leave.135
On December 5, 2013, Director Baker sent an email to Director Huston attaching a
Loudermill notice for Ms. Vay based on “email issues.”136 Director Baker indicated he did not
set a firm date for the hearing because the district attorney’s office had to investigate the email
issues themselves.137

Ms. Vay learned during this litigation the district attorney’s office

investigated Ms. Vay for leaking information in a high profile case to the media.138 The Medical
Examiner’s Office did not conduct its own investigation.139 The County never disciplined her for
any conduct relating to the district attorney’s office investigation, and Ms. Vay denies she leaked
information.140

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In mid-January 2014, the County offered Ms. Vay a position as an investigator in the
public defender’s office.141 It is unclear from the record whether the district attorney’s office’s
investigation remained ongoing when the County made this offer. Ms. Vay rejected the offer.
The County paid Ms. Vay until March or April 2014.142

On March 31, 2014, a

psychiatrist diagnosed Ms. Vay with generalized anxiety disorder and prescribed her anti-anxiety
medication and counseling.143 Ms. Vay applied for leave under the Family Medical Leave Act,
which the County granted.144 Ms. Vay requested an extension, but the County denied it.145 The
County discharged Ms. Vay on December 16, 2014.146
II.

Analysis

Ms. Vay sued Director Huston, Manager Pilarski, Director Baker, and Manager Chichwak
(“Individual Defendants”) for gender discrimination, hostile work environment, and retaliation
claims under 42 U.S.C. § 1983. She sued the County for gender discrimination, hostile work
environment, and retaliation claims under Title VII of the Civil Rights Act of 1964 147 and the
Pennsylvania Human Relations Act (“PHRA”).148 Both the County and Individual Defendants
moved for summary judgment arguing Ms. Vay failed to administratively exhaust her Title VII
and PHRA claims, some of her claims are untimely, and her claims fail as a matter of law. 149 In
the accompanying Order, we deny the County’s and Individual Defendants’ motions as to claims
other than the §1983 retaliation claim as there are genuine issues of material fact requiring a
jury’s evaluation of credibility.
a. Ms. Vay timely exhausted administrative remedies for the purposes of her
Title VII and PHRA claims.
The County contends Ms. Vay failed to exhaust her administrative remedies under Title
VII and the PHRA as to claims not raised in her EEOC charge of discrimination, including her
unlawful termination claim.150 Ms. Vay counters the claims arising from the following discrete

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acts satisfy the administrative exhaustion requirement: (1) August 20, 2013 26-day unpaid
suspension; (2) December 3, 2013 indefinite unpaid administrative leave; and (3) December 16,
2014 termination.151
Under Title VII, “[t]he parameters of the civil action in the district court are defined by
the scope of the EEOC investigation which can reasonably be expected to grow out of the charge
of discrimination, including new acts which occurred during the pendency of proceedings before
the EEOC.”152 Vay’s claims must “fall ‘fairly within the scope of the prior EEOC complaint, or
the investigation arising therefrom.’”153
The exhaustion requirement does not necessarily require a plaintiff to file a new
administrative complaint following each allegedly discriminatory act. 154 In Waiters, the plaintiff
alleged retaliation in her administrative complaint but did not specifically allege retaliatory
discharge because she had not yet been discharged.155

The EEOC investigation, however,

uncovered evidence of retaliatory intent based on the employer’s conduct.156 Our Court of
Appeals held although the administrative complaint alleged different discriminatory acts and
officials, “the core grievance—retaliation—is the same” in both the administrative complaint and
the lawsuit, and the allegations in the lawsuit fell within the scope of the administrative
investigation.157

Under these circumstances, the EEOC’s “policy of promoting conciliation

would not be furthered by allowing the defendants to delay having to answer in court for
retaliatory action allegedly taken against appellant for asserting her rights.”158
In Kerns v. Drexel University, Judge Yohn similarly held the employee exhausted
administrative remedies under similar circumstances.159 The employee, before discharge, filed
an administrative complaint alleging racial discrimination and retaliation.160 The employee later
sued his employer for racially discriminatory and retaliatory termination.161 Judge Yohn found

15

the case akin to Waiters because “the core grievances of this lawsuit, racial discrimination and
retaliation resulting in termination, substantially overlap” with the allegations in the employee’s
administrative complaint.162 This case presented a “stronger basis” for exhaustion than Waiters
because the alleged discriminatory actors were the same.163 “The only difference between the
[administrative complaint] and the [federal complaint] was the specific act of discrimination and
retaliation alleged in the latter, Kerns’ termination.”164
We similarly find Ms. Vay exhausted her claims for sexually discriminatory and
retaliatory termination. In her EEOC charge, which she dual filed with the Pennsylvania Human
Relations Commission, Ms. Vay alleged gender discrimination and retaliation.165 She filed the
charge while on paid administrative leave following a hearing with the County resulting in a
decision in her favor.166 Ms. Vay alleged she feared the County would illegally discharge or
demote her upon returning in light of Director Huston’s comment before the hearing: “That chick
is not going to step foot in this building again.”167 The core grievance in her EEOC charge and
her federal lawsuit is the same: gender discrimination and retaliation. The alleged discriminatory
actors are also the same. Ms. Vay’s unlawful termination claims present a stronger case for
exhaustion than Kerns because Ms. Vay mentioned in her EEOC charge the County would likely
terminate her employment, which it did. Ms. Vay also specifically raises her 26-day suspension
and her placement on paid administrative leave in the EEOC charge. 168 Ms. Vay sufficiently
exhausted her administrative remedies.

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b. Ms. Vay’s claims are not barred by a statute of limitations.
Ms. Vay’s claims under Title VII, the PHRA, and § 1983 must satisfy timing
requirements.169 For the purposes of statute of limitations, we distinguish between discrete acts
and nondiscrete acts.
Discrete acts
“Discrete discriminatory acts are not actionable if time barred, even when they are related
to acts alleged in timely filed charges.”170 A discrete act “constitutes a separate actionable
unlawful employment practice”171 and “must be raised within the applicable limitations period or
they will not support a lawsuit.”172 A discrete act includes “termination, failure to promote,
denial of transfer, refusal to hire, wrongful suspension, wrongful discipline, denial of training,
wrongful accusation.”173
Ms. Vay seeks relief for three discrete acts: (1) August 20, 2013 26-day unpaid
suspension; (2) December 3, 2013 indefinite paid leave; and (3) December 16, 2014
termination.174 Under the PHRA, Ms. Vay must file an administrative complaint within 180
days of the alleged act of discrimination.175 Under Title VII, Ms. Vay must file an administrative
complaint within 300 days of the unlawful employment practice. 176 Ms. Vay filed her EEOC
charge on January 21, 2014. One hundred eighty days before January 21, 2014 is July 25, 2013.
Three hundred days before January 21, 2014 is March 27, 2013. Ms. Vay’s filing of her EEOC
charge satisfies the PHRA and Title VII timing requirements as to these discrete acts because
these acts occurred after July 25, 2013.
Ms. Vay’s § 1983 claims are “governed by the statute of limitations that applies to
personal injury tort claims in the state in which such a claim arises.”177 Ms. Vay’s claims arose
in Pennsylvania. Pennsylvania law requires a plaintiff sue for personal injury claims within two

17

years of the accrual of the claim.178 Ms. Vay filed this lawsuit on June 16, 2014,179 meaning she
can only pursue claims arising after June 16, 2012. As all of the discrete acts occurred after June
16, 2012, Ms. Vay’s § 1983 claims for these three discrete acts are not barred by the statute of
limitations.
Nondiscrete acts
Nondiscrete discriminatory acts—which are not individually actionable—may be
aggregated to form a hostile work environment claim under the continuing violation doctrine.180
“[S]uch acts “can occur at any time so long as they are linked in a pattern of actions which
continues into the applicable limitations period.”181 To bring in nondiscrete acts before the
limitations period under the continuing violation doctrine, Ms. Vay must show: (1) at least one
act occurred within the filing period; and (2) the harassment is “more than the occurrence of
isolated or sporadic acts of intentional discrimination.”182

In determining whether the

harassment is part of a “persistent, ongoing pattern,” we consider a non-exhaustive list of factors,
including the subject matter and frequency of the underlying acts. 183 Subject matter is defined as
“whether the violations constitute the same type of discrimination.”184 “[I]ndividually actionable
allegations cannot be aggregated” for the purposes of the continuing violation doctrine.185
Ms. Vay provides sufficient evidence of a persistent, ongoing pattern of nondiscrete acts.
Ms. Vay contends she experienced many instances of wrongful suspension, wrongful discipline,
and false accusations.

This conduct is individually actionable, and therefore cannot be

considered for aggregation purposes under the continuing violation doctrine. The remaining
nondiscrete acts include (a) the physical threat by a coworker in 2010; (b) locker room talk about
female employees; (c) derogatory sex-based comments by supervisors and coworkers directed
toward Ms. Vay in 2010 and 2011; and (d) a number of instances throughout her employment

18

where supervisors acted with hostility toward Ms. Vay. One of these acts of hostility—Mr.
Baker’s outburst at the December 2, 2013 Loudermill hearing, occurred within the limitations
period. These nondiscrete acts are more than the occurrence of isolated or sporadic acts of
intentional discrimination and are sufficient to establish a persistent, ongoing pattern of actions
under the continuing violation doctrine.
c. Ms. Vay may proceed on Title VII and PHRA gender discrimination claims
against the County.186
The County contends Ms. Vay suffered no adverse employment action except for her
August 2013 26-day suspension, which is not actionable because there are no valid comparators.
Ms. Vay counters she suffered three adverse actions: (1) August 2013 26-day unpaid suspension;
(2) December 2013 indefinite paid leave; and (3) December 2014 termination.
Under Title VII, Plaintiff is an “unlawful employment practice for an employer to . . .
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s” sex.187 For Vay’s claim of gender
discrimination, we follow the three-step framework in McDonnell Douglas188 and first determine
whether she states a prima facie case.189

Second, we ask whether the County provides a

legitimate nondiscriminatory reason for its conduct.190 Third, we determine whether Ms. Vay
can prove the County’s proffered reason is pretextual.191
To state a prima facie case of gender discrimination, Ms. Vay must show (1) she is a
member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse
employment action; and (4) members of the opposite sex were treated more favorably or the
circumstances otherwise give rise to an inference of intentional discrimination.192
The County does not argue Ms. Vay fails to demonstrate pretext. Instead, the County
argues the December 2013 indefinite paid leave and December 2014 termination are not valid

19

adverse employment actions. As to Ms. Vay’s termination, the County’s sole argument is Ms.
Vay failed to exhaust administrative remedies as to this claim—an argument we reject above.
As to the County’s placement of Ms. Vay on indefinite paid administrative leave, we
agree placement on paid administrative leave pending an investigation of misconduct, without
more, does not constitute an adverse employment action.193 An adverse employment action is a
“serious and tangible” alteration of the “terms, conditions, or privileges or employment.” 194 In
Jones v. SEPTA, our Court of Appeals held a “paid suspension pending an investigation of an
employee’s alleged wrongdoing does not” constitute an adverse employment action.195 The
employer suspended the plaintiff with pay upon discovering apparent fraud in her time sheets.196
Under these circumstances, the plaintiff’s paid suspension did not alter the terms, conditions, or
privileges of her employment “because ‘the terms and conditions of employment ordinarily
include the possibility that an employee will be subject to an employer’s disciplinary policies in
appropriate circumstances.’”197
Consistent with Jones, the Court of Appeals for the Second, Fourth, Fifth, Sixth, and
Eighth Circuits held placement on paid administrative leave pending an investigation into
misconduct does not constitute an adverse employment action.198 The Court of Appeals for the
Second Circuit explained, “[t]hese circuits have reasoned that the terms and conditions of
employment ordinarily include the possibility that an employee will be subject to an employer’s
disciplinary policies in appropriate circumstances.”199

“The relevant question is therefore

whether the employer has simply applied reasonable disciplinary procedures to an employee or if
the employer has exceeded those procedures and thereby changed the terms and conditions of
employment. Paid suspension during an investigation could thus potentially be adverse if the
employer takes actions beyond an employee’s normal exposure to disciplinary policies.”200

20

A genuine issue of material fact exists as to whether the County’s placement of Ms. Vay
on indefinite paid administrative leave without providing her a reason constitutes an adverse
employment action.

Under normal employment circumstances, working on the job is an

ordinary term of employment.

An employer’s decision to place an employee on a paid

suspension without any allegation of wrongdoing is not an ordinary term or condition of
employment.

The County does not contend it “simply applied reasonable disciplinary

procedures,”201 but instead contends it placed Ms. Vay on paid leave due to the district attorney’s
office’s investigation. This contention is belied by the County’s subsequent decision to offer Ms.
Vay a position as an investigator in the public defender’s office. The County itself did not
conduct its own investigation. There is a genuine issue of material fact as to whether the County
applied reasonable disciplinary procedures when placing Ms. Vay on indefinite paid
administrative leave.
As to Ms. Vay’s August 2013 26-day suspension, the County argues Ms. Vay fails to
satisfy her prima facie burden of showing the County treated a similarly situated comparator
more favorably than Ms. Vay. In determining whether male employees are similarly situated, we
“focus is on the particular criteria or qualifications identified by the employer as the reason for
the adverse action.”202 We also must focus on whether the alleged comparator is employed in a
comparable position, as “an employee who holds a different job in a different department is not
similarly situated.”203 In the context of employer discipline, we also consider whether the
alleged comparator “engaged in similar offending conduct.”204
The County suspended Ms. Vay for 26 days for disorderly conduct and destroying County
property relating to an August 9, 2013 meeting with Director Baker. Mr. Manno, also an
investigator in the Medical Examiner’s Office, allegedly engaged in similar conduct but the

21

County did not discipline him. Ms. Bogoevski stated she saw Mr. Manno “yell, throw things,
scream, cuss, slam down phones” in the presence of a supervisor, and the supervisor dismissed
the conduct, stating, “It’s okay, he does this every day. You’ll get used to it.” 205 Mr. Manno
swore at management on almost a daily basis, called Director Huston a “f**king moron” to
another supervisor, and “said ‘f**k off’ all of the time to management.”206 Mr. Manno also
admits he poked a hole in a GPS unit—which supervisors knew he did. The County did not
discipline Mr. Manno for this conduct. Although Mr. Manno and Ms. Vay’s conduct occurred at
different times, this evidence creates a genuine dispute of material fact as to whether the County
treated a similarly situated male employee more favorably than Ms. Vay.
d. Ms. Vay may proceed on a §1983 gender discrimination claim against the
Individual Defendants.
The Individual Defendants’ arguments with respect to Ms. Vay’s § 1983 gender
discrimination claims are the same as the County’s arguments as to Ms. Vay’s Title VII gender
discrimination claim. Because we review Ms. Vay’s § 1983 gender discrimination claims under
the same standard as her Title VII gender discrimination claim,207 we reject the Individual
Defendants’ arguments for the same reasons we rejected the County’s arguments.
We do not consider the Individual Defendants’ new arguments raised in their reply. In
their reply, the Individual Defendants raise—for the first time—arguments regarding their lack of
personal involvement in the adverse employment actions. Because the Individual Defendants
failed to raise these arguments in their response, we will not consider these new arguments raised
for the first time in their reply.208

22

e. Ms. Vay may proceed on hostile work environment claims under § 1983, Title
VII, and the PHRA against the County and Individual Defendants.209
The County and Individual Defendants argue Ms. Vay fails to satisfy the elements of a
hostile work environment claim. Although our Court of Appeals has not addressed whether a
plaintiff can pursue a hostile work environment claim under § 1983, the general consensus
among federal courts is to permit these § 1983 claims.210 The elements of a hostile work
environment claim under Title VII and § 1983 are the same. 211 To succeed on her hostile work
environment claim, Ms. Vay must establish: (1) she suffered intentional discrimination because
of her sex; (2) she suffered severe or pervasive discrimination; (3) the discrimination
detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable person
in similar circumstances; and (5) the existence of respondeat superior liability.212 For summary
judgment purposes, the County and Individual Defendants contest all of these elements except
for the third element of detrimentally affecting Ms. Vay.
Intentional discrimination
The County and Individual Defendants’ argue Ms. Vay cannot demonstrate intent to
discriminate because Mr. Manno is not a valid comparator with respect to Ms. Vay’s August
2013 26-day suspension. As we held Mr. Manno is a valid comparator, and a reasonable jury
could infer intent to discriminate on the basis of gender based on the County’s failure to
discipline Mr. Manno, we reject this argument. This finding is also supported by Manager
Pilarski’s statements calling Ms. Vay a bitch.
Severe or pervasive
To determine whether an environment is severe or pervasive, we 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

23

unreasonably interferes with an employee’s work performance.”213 “[T]he ‘conduct must be
extreme to amount to a change in the terms and conditions of employment.’”214 This analysis
“must concentrate not on individual incidents, but on the overall scenario.”215 “[T]he advent of
more sophisticated and subtle forms of discrimination requires that we analyze the aggregate
effect of all evidence and reasonable inferences therefrom, including those concerning incidents
of facially neutral mistreatment, in evaluating a hostile work environment claim.”216
For example, in Jenson v. Potter, our Court of Appeals held a jury could find severe or
pervasive retaliatory harassment where there were retaliatory insults two to three times per week
for 19 months, physical threats, and at least four instances of property damage to the employee’s
vehicle.217 The severity of the threats and property damage combined with the frequency of the
insults raised “a material question of fact as to whether retaliatory harassment ‘permeated’ the
workplace and changed the terms or conditions of the employee’s employment.”218
Evidence employees falsely accused Ms. Vay of wrongdoing may also be considered in
determining whether harassment is severe or pervasive.219 In Aman v. Cort Furniture Rental
Corporation, our Court of Appeals found relevant employees’ false accusations of favoritism to
other black employees and dereliction of duty.220
Although “the pervasive use of derogatory and insulting terms relating to women
generally and addressed to female employees personally may serve as evidence of a hostile
environment,”221 “[o]ccasional insults, teasing, or episodic instances of ridicule are not enough;
they do not ‘permeate’ the workplace and change the very nature of the plaintiff’s
employment.”222
In Webb v. Merck, Judge Yohn held the employee proffered sufficient evidence for a jury
to find he suffered severe or pervasive racial harassment over a period of one year while working

24

at Merck.223 The employee learned through other employees his supervisor referred to himself as
the “zookeeper” and his all African-American shift crew as his “animals.”224 The supervisor
administered disparate and harsh discipline to the employee in comparison to white
coworkers.225 When the employee complained to management about his supervisor’s behavior,
management failed to address his complaints.226 Instead, his supervisor increased scrutiny after
the employee complained of discriminatory treatment, and the supervisor falsely accused the
employee of committing a work error, resulting in a five-day suspension.227 The employer did
not conduct a fair and impartial investigation, as they failed to interview key witnesses and
ignored multiple witnesses who corroborated the employee’s version.228
A reasonable jury could conclude Ms. Vay similarly endured severe or pervasive
harassment.

Early on in her employment, Ms. Vay’s coworkers made sexually derogatory

references toward her, including “bitch,” “whore,” and “c**t crew.” Management called Ms.
Vay a bitch on at least three occasions and on separate occasions suggested she acted like a c**t
and dressed like a whore. On one occasion, a coworker physically threatened Ms. Vay, calling
her a bitch. Management responded to Ms. Vay’s complaints of unfair treatment or derogatory
statements with hostility or by ignoring them. Management threatened to fire Ms. Vay on
multiple occasions and made clear they would do whatever they could to ensure Ms. Vay would
“not step foot in [the Medical Examiner’s Office] again.”229 Considering the totality of the
circumstances, a reasonable jury could conclude Ms. Vay endured severe or pervasive
harassment.
Detrimental effect on a reasonable person
The County and Individual Defendants argue no reasonable employee who committed the
acts leading to Ms. Vay’s discipline would reasonably expect to not be disciplined.

25

In

determining whether the objective test is met, we look at all 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.”230 “Title VII is not violated by the ‘mere utterance of an . . .
epithet which engenders offensive feelings in an employee’ or by mere ‘discourtesy or rudeness,’
unless so severe or pervasive as to constitute an objective change in the conditions of
employment.”231 For the reasons stated with respect to the “severe or pervasive” requirement,
we conclude a jury could find a reasonable person in Ms. Vay’s position would find the conduct
alleged to be harmful enough to alter her working conditions.
Respondeat superior liability
The County argues Ms. Vay’s harassment did not result in a tangible employment action,
meaning the County may rely on the affirmative defense it exercised reasonable care to prevent
and promptly correct harassment. “If supervisors create the hostile environment, the employer is
strictly liable, though an affirmative defense may be available where there is no tangible
employment action.”232 In such cases, an employer may defeat vicarious liability by showing
“‘the employer exercised reasonable care to prevent and correct promptly any sexually harassing
behavior,’ and that ‘the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’”233
The County may not rely on this affirmative defense because it, and not a subordinate, fired Ms.
Vay.
f. Ms. Vay may proceed on Title VII and PHRA retaliation claims.
To state a prima facie case of retaliation under Title VII, Ms. Vay must establish (1) she
engaged in protected activity; (2) the employer engaged in conduct constituting an adverse action

26

either contemporaneous with or after the protected activity; and (3) a causal connection between
the protected activity and the adverse action.234 If she does so, then the County must advance a
legitimate, nondiscriminatory reason for its adverse action.235 Then, Ms. Vay must produce some
evidence demonstrating pretext—“both that the employer’s proffered explanation was false, and
that retaliation was the real reason for the adverse employment action.”236
The County contends Ms. Vay cannot satisfy any of the elements of a prima facie case or
demonstrate pretext.
Protected activity
Ms. Vay contends she engaged in protected activity in July 2011 when she complained to
human resources about derogatory comments, including the “whore” and “c**t crew” comments.
Title VII protects those who oppose unlawful discrimination.237 For a statement to constitute
protected activity, “it must be possible to discern from the context of the statement that the
employee opposes an unlawful employment practice.”238 Ms. Vay must have an objectively
reasonable belief the activity she opposed constituted unlawful discrimination.239 For example,
in Greene v. MPW, Chief Judge Ambrose held the plaintiff reasonably believed he opposed a
racially hostile work environment when he complained a coworker’s use of the word “nigger.”240
We similarly conclude Ms. Vay reasonably believed she opposed a hostile work environment
when complaining about her coworkers’ “whore” and “c**t crew” comments, which were
directed at her.
Adverse actions
Ms. Vay contends the County took discrete adverse actions against her: (1) her August
2013 26-day suspension; (2) her December 2013 indefinite paid suspension; and (3) her
December 2014 termination. Ms. Vay also contends the hostile work environment she suffered

27

constitutes a materially adverse action. Under Title VII’s anti-retaliation provision, Ms. Vay
must show the County engaged in conduct which a reasonable employee would have viewed as
materially adverse because the County’s conduct “might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”241
Under this standard, Ms. Vay’s suspensions and termination are materially adverse
actions. The County terminated her before a hearing and, when she succeeded, continued to
threaten actions to ensure termination.
Causal connection
Ms. Vay contends the causal connection requirement is satisfied based on the hostile
work environment she experienced following her complaint. To establish a causal connection, “a
plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with
timing to establish a causal link.”242 In the absence of such proof, Ms. Vay “must show that from
the ‘evidence gleaned from the record as a whole’ the trier of the fact should infer causation.”243
A reasonable jury could infer a causal connection based on the record as a whole. In
September 2011, two months after Ms. Vay’s complaint, Manager Pilarski reacted with hostility
toward Ms. Vay after she requested a union representative at her meeting.

In the years

proceeding Ms. Vay’s complaint, Management suspended her for conduct for which other
employees not associated with her were not disciplined. Management also falsely accused her of
misconduct, and created an environment Ms. Sullivan described as “stressful all of the time” and
“hateful.”244 A reasonable jury could find a causal connection under these circumstances.

28

g. Ms. Vay does not oppose dismissal of her § 1983 retaliation claims.
The Individual Defendants argue Ms. Vay’s § 1983 claims are not actionable. Ms. Vay
does not oppose dismissal of her § 1983 retaliation claims.

III.

Conclusion

Ms. Vay established a prima facie case of gender discrimination, hostile work
environment, and retaliation under Title VII, § 1983, and the PHRA against the County and the
Individual Defendants. The motion for summary judgment is granted with respect to Ms. Vay’s §
1983 retaliation claims. In the accompanying Order, we deny the motion in all other respects
because Ms. Vay established gender discrimination, hostile work environment, and retaliation
subject to the jury’s evaluation of the disputed facts.
We amend only to correct an inadvertent typographical error on Page 18. Nothing in this
Amended Memorandum affects our reasoning in support of our December 16, 2016 Order (ECF
Doc. No. 277).
1

2

We consider the “underlying facts and all reasonable inferences therefrom in the light most
favorable to” Ms. Vay, “the party opposing the motion.” Slagle v. Cnty. of Clarion, 435 F.3d 262,
264 (3d Cir. 2006) (citations omitted).
3

ECF Doc. No. 262, ¶ 1.

4

Id. ¶ 2.

5

Id.

6

Id.

7

Id.

8

ECF Doc. No. 265-1, ¶ 5.

9

Id.

10

ECF Doc. No. 265-15, ¶ 6.

29

11

Id.

12

Id. ¶ 25.

13

ECF Doc. No. 265-16, ¶ 11.

14

ECF Doc. No. 265-11, at p. 20.

15

ECF Doc. No. 265-2, at pp. 34–35.

16

ECF Doc. No. 265-2, at pp. 14–15.

17

ECF Doc. No. 265-10, at p. 19.

18

ECF Doc. No. 265-10, at p. 22.

19

ECF Doc. No. 265-1, ¶ 11.

20

Id.

21

Id.

22

ECF Doc. No. 248-19; ECF Doc. No. 265-2, at p. 40.

23

ECF Doc. No. 265-2, at p. 40; ECF Doc. No. 265-6, at p. 15.

24

ECF Doc. No. 265-1, ¶ 13.

25

Id. ¶ 12.

26

ECF Doc. No. 265-1 ¶ 15; ECF Doc. No. 265-4, at p. 14.

27

ECF Doc. No. 265-2, p. 45.

28

ECF Doc. No. 265-13, at p. 5.

29

Id. at pp. 5, 29.

30

ECF Doc. No. 265-2, at p. 103; ECF Doc. No. 265-13, at p. 11.

31

ECF Doc. No. 265-2, at p. 51.

32

Id. at p. 103.

33

ECF Doc. No. 265-3, at pp. 12–13.

30

34

ECF Doc. No. 265-1, ¶ 18.

35

ECF Doc. No. 265-10, at pp. 47–58.

36

ECF Doc. No. 265-1, ¶ 34.

37

ECF Doc. No. 265-1, ¶ 34.

38

ECF Doc. No. 265-10, at pp. 50–51.

39

ECF Doc. No. 265-1, ¶¶ 20–21.

40

Id. ¶ 22.

41

ECF Doc. No. 265-7, at pp. 30–33, 35.

42

ECF Doc. No. 265-2, at p. 82; ECF Doc. No. 265-13, at p. 21.

43

ECF Doc. No. 265-1, ¶ 24.

44

Id. ¶ 25.

45

Id. ¶ 26.

46

ECF Doc. No. 265-6, at pp. 13–14.

47

ECF Doc. No. 265-8, at pp. 51–52.

48

ECF Doc. No. 265-2, at pp. 78–79.

49

ECF Doc. No. 265-1, ¶ 28; ECF Doc. No. 265-2, at p. 76.

50

ECF Doc. No. 265-13, at pp. 113–118.

51

Id. at p. 116.

52

Id. at pp. 39, 45.

53

ECF Doc. No. 265-1, ¶ 30.

54

Id. ¶ 31.

55

ECF Doc. No. 265-2, at p. 332.

56

ECF Doc. No. 265-1, ¶ 35.

31

57

ECF Doc. No. 265-10, at p. 58.

58

ECF Doc. No. 265-1, ¶ 36.

59

Id. ¶ 37.

60

Id. ¶ 38.

61

ECF Doc. No. 265-13, at p. 6; ECF Doc. No. 265-13, at p. 127.

62

ECF Doc. No. 265-10, at pp. 55–57.

63

Id. at p. 57

64

ECF Doc. No. 265-1, ¶ 39.

65

Id. ¶ 39.

66

Id. ¶ 40.

67

Id. ¶ 41.

68

Id. ¶ 42.

69

Id. ¶ 42.

70

Id. ¶¶ 43–44.

71

Id. ¶ 44.

72

Id.

73

Id. ¶ 45.

74

ECF Doc. No. 265-2, at p. 86.

75

ECF Doc. No. 265-15, ¶ 12.

76

ECF Doc. No. 265-16, ¶ 4.

77

ECF Doc. No. 265-2, at p. 86; ECF Doc. No. 265-15, ¶ 10.

78

ECF Doc. No. 265-13, at p. 16.

79

Id.

32

80

ECF Doc. No. 265-7, at pp. 15–16.

81

ECF Doc. No. 265-1, ¶ 46.

82

Id. ¶¶ 47–48.

83

ECF Doc. No. 265-1, ¶ 49.

84

ECF Doc. No. 265-13, at p. 92.

85

Id. at p. 130.

86

ECF Doc. No. 265-5, at p. 8.

87

ECF Doc. No. 265-1, ¶ 51.

88

Id. ¶ 50.

89

ECF Doc. No. 248-22.

90

Id.

91

ECF Doc. No. 265-17, at p. 34.

92

Id. at pp. 33–34.

93

ECF Doc. No. 265-2, at pp. 91, 93.

94

ECF Doc. No. 248-23.

95

Id.

96

ECF Doc. No. 265-17, at p. 30.

97

Id. at p. 33.

98

ECF Doc. No. 265-15, ¶ 14.

99

Id.

100

Id. ¶ 15.

101

ECF Doc. No. 265-13, at p. 106.

102

Id.

33

103

Id.

104

ECF Doc. No. 265-13 at p. 55.

105

ECF Doc. No. 265-1, ¶ 53.

106

Id.

107

Id. ¶ 54.

108

Id. ¶ 55.

109

Id. ¶ 56.

110

ECF Doc. No. 248-24, at p. 1.

111

Id.

112

ECF Doc. No. 151-5, at p. 4.

113

Id. at p. 1.

114

ECF Doc. No. 265-15, ¶¶ 22–23.

115

ECF Doc. No. 265-17, at p. 13.

116

Id. at pp. 19–21.

117

Id. at p. 21.

118

Id. at pp. 21–22.

119

ECF Doc. No. 265-1, ¶ 58.

120

ECF Doc. No. 248-43, at p. 1.

121

ECF Doc. No. 265-1, ¶ 59.

122

ECF Doc. No. 265-13, at p. 48.

123

Id. at p. 50.

124

Id. at p. 49.

125

ECF Doc. No. 265-1, ¶ 60.

34

126

ECF Doc. No. 265-17, at p. 44.

127

ECF Doc. No. 265-1, ¶ 60.

128

Id. ¶ 61.

129

Id. ¶¶ 61–62

130

Id. ¶ 63.

131

ECF Doc. No. 265-16, ¶ 8.

132

Id.

133

ECF Doc. No. 265-13, at p. 53.

134

Id.

135

ECF Doc. No. 265-1, ¶ 80.

136

ECF Doc. No. 265-13, at p. 54.

137

Id.

138

ECF Doc. No. 265-1, ¶ 81; ECF Doc. No. 248-13, at p. 3.

139

ECF Doc. No. 248-39, at p. 5.

140

ECF Doc. No. 265-1, ¶ 81.

141

ECF Doc. No. 248-13, at p. 3.

142

ECF Doc. No. 265-1, ¶ 82.

143

ECF Doc. No. 265-13, at pp. 86–87.

144

ECF Doc. No. 265-1, ¶ 82.

145

Id. ¶ 83.

146

ECF Doc. No. 262, ¶ 1a.

147

42 U.S.C. § 2000e et seq.

148

43 Pa. C.S.A. § 951 et seq.

35

149

Summary judgment is proper when there is no genuine dispute of material fact and the
movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute as to a material
fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for
summary judgment, the court must consider the “underlying facts and all reasonable inferences
therefrom in the light most favorable to the party opposing the motion.” Slagle v. Cnty. of
Clarion, 435 F.3d 262, 264 (3d Cir. 2006) (citations omitted). If the movant carries its initial
burden of showing the basis of its motion, the burden shifts to the non-moving party to go
beyond the pleadings and point to “specific facts showing that a genuine issue exists for trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In other words, the non-moving party
“must present more than just bare assertions, conclusory allegations or suspicions to show the
existence of a genuine issue.” Podobnik v. US. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(citation and internal quotation marks omitted). Summary judgment must be granted against a
non-moving party who fails to sufficiently “establish the existence of an essential element of its
case on which it bears the burden of proof at trial.” Blunt v. Lower Merion Sch. Dist., 767 F.3d
247, 265 (3d Cir. 2014).
150

ECF Doc. No. 252, at p. 11 n.7.

151

ECF Doc. No. 263, at p. 2–3.

152

Mandel v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013) (quoting Ostapowicz v.
Johnson Bronze Co., 541 F.2d 394, 398–99 (3d Cir. 1976)) (brackets omitted).
153

Id. (quoting Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996)).

154

See Waiters v. Parsons, 729 F.2d 233, 238 (3d Cir. 1984).

155

Id.

156

Id.

157

Id.

158

Id.

159

Kerns v. Drexel Univ., No. 06-5575, 2008 WL 2876590, at *8 (E.D. Pa. July 24, 2008).

160

Id.

161

Id.

162

Id.

163

Id.

36

164

Id.

165

ECF Doc. No. 248-29, at p. 4.

166

Id.

167

Id. (emphasis omitted).

168

Id.

169

Mandel, 706 F.3d at 163.

170

Id. at 165 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002))
(brackets omitted).
171

Id. (quoting Nat’l R.R. Passenger Corp., 536 U.S. at 114).

172

O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006).

173

Id.

174

ECF Doc. No. 263, at p. 2–3.

175

Mandel, 706 F.3d at 164 (quoting 43 Pa. Stat. § 959(h)).

176

Id. at 165 (quoting 42 U.S.C. § 2000e–5(e)(1)).

177

Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 602 (3d Cir. 2015) (quoting Kach v. Hose, 589
F.3d 626, 639 (3d Cir. 2009)) (brackets omitted).
178

Pa. Cons. Stat. § 5524(7).

179

ECF Doc. No. 1.

180

Mandel, 706 F.3d at 165.

181

Id. (quoting O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)).

182

W. v. Philadelphia Elec. Co., 45 F.3d 744, 754–55 (3d Cir. 1995) (quoting Jewett v. Int’l Tel.
& Tel. Corp., 653 F.2d 89, 91 (3d Cir. 1981)).
183

Mandel, 706 F.3d at 166.

184

Id. at 166 n.2.

37

185

O’Connor, 440 F.3d at 127.

186

“[T]he PHRA is to be interpreted as identical to federal antidiscrimination laws except where
there is something specifically different in its language requiring that it be treated differently.”
Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 327 (3d Cir. 2015) (quoting Fogleman v. Mercy
Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002)). Vay does not point to specific language requiring
different treatment.
187

42 U.S.C. § 2000e–2(a)(1).

188

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

189

Jones, 796 F.3d at 326.

190

Id.

191

Id.

192

Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013).

193

Jones, 796 F.3d at 327.

194

Id. at 326 (quoting Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)).

195

Id. at 326.

196

Id. at 324.

197

Id. at 326.

198

Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000); Von Gunten v. Maryland, 243
F.3d 858, 869 (4th Cir. 2001); Peltier v. United States, 388 F.3d 984, 988 (6th Cir. 2004);
Singletary v. Missouri Dep’t of Corr., 423 F.3d 886, 891–92 (8th Cir. 2005). Joseph v. Leavitt,
465 F.3d 87, 92 (2d Cir. 2006).
199

Joseph, 465 F.3d at 91.

200

Id. at 93 n.1.

201

Id.

202

Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 359 (3d Cir. 1999) (quoting Simpson v. Kay
Jewelers, 142 F.3d 639, 646 (3d Cir. 1998)).
203

Mandel, 706 F.3d at 170 (citing Pivirotto, 191 F.3d at 358–59).

38

204

Epps v. First Energy Nuclear Operating Co., No. 11-1462, 2013 WL 1216858, at *18 (W.D.
Pa. Mar. 25, 2013) (quoting Mandel, 706 F.3d at 170).
205

ECF Doc. No. 265-17, at p. 13.

206

ECF Doc. No. 265-16, ¶ 4.

207

Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997).

208

Konold v. Superior Int’l Indus. Inc., 911 F. Supp. 2d 303, 307 n.2 (W.D. Pa. 2012) (citing
Alston v. Forsyth, 379 F. App’x 126, 129 (3d Cir. 2010)).
209

Again, we do not consider the Individual Defendants’ new arguments raised for the first time
in their reply brief regarding their lack of individual involvement. Konold, 911 F. Supp. 2d at
307 n.2 (citing Alston, 379 F. App’x at 129). The Individual Defendants may raise these
arguments following the close of the Ms. Vay’s case or all the evidence.
210

Pollock v. City of Philadelphia, No. 06-4089, 2008 WL 3457043, at *9 (E.D. Pa. Aug. 8,
2008).
211

Id.

212

Mandel, 706 F.3d at 167 (3d Cir. 2013) (citing Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.
2006)).
213

Id. at 168 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), overruled on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
214

Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998)).
215

Mandel, 706 F.3d at 168 (quoting Caver v. City of Trenton, 420 F.3d 243, 262–63 (3d Cir.
2005)).
216

Cardenas v. Massey, 269 F.3d 251, 261–62 (3d Cir. 2001).

217

Jensen, 435 F.3d at 452.

218

Id. (Harris, 510 U.S. at 21) (brackets omitted).

219

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996).

220

Id. at 1078.

39

221

Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990).

222

Jensen, 435 F.3d at 451.

223

Webb v. Merck & Co., 450 F. Supp. 2d 582, 598 (E.D. Pa. 2006).

224

Id.

225

Id. at 596.

226

Id.

227

Id.

228

Id. at 591–92.

229

ECF Doc. No. 248-29, at p. 4 (emphasis omitted).

230

Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 280 (3d Cir. 2001) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
231

Id. (quoting Faragher, 524 U.S. at 787).

232

Jensen, 435 F.3d at 452 (quoting Burlington, 524 U.S. at 765).

233

Pennsylvania State Police v. Suders, 542 U.S. 129, 145–46 (2004) (quoting Burlington, 524
U.S. at 765).
234

Jones, 796 F.3d at 329 (quoting E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir.
2015)).
235

Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006).

236

Id. (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500–01 (3d Cir. 1997)).

237

Id. at 341.

238

Curay-Cramer v. Ursuline Acad. of Wilmington, Delaware, Inc., 450 F.3d 130, 135 (3d Cir.
2006) (citing EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012–13 (9th Cir. 1983)).
239

Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 194 (3d Cir. 2015).

240

Greene v. MPW Indus. Servs., Inc., No. 06-647, 2006 WL 3308577, at *3 (W.D. Pa. Oct. 4,
2006).

40

241

Moore, 461 F.3d at 341 (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68).

242

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

243

Id.

244

ECF Doc. No. 265-10, at p. 58.

41