KENGERSKI v. THE ALLEGHENY COUNTY JAIL et al

Filing 107

MEMORANDUM ORDER denying 56 Motion for Summary Judgment, 73 Motion to Strike, and 74 Motion to Strike. Signed by Judge J. Nicholas Ranjan on 10/19/2021. (av)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEFFREY KENGERSKI,
Plaintiff,
v.
COUNTY OF ALLEGHENY,
Defendant.

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2:17-cv-1048-NR

MEMORANDUM ORDER
Plaintiff Jeffrey Kengerski’s sole remaining claim is a Title VII retaliation
claim. The Court previously granted summary judgment to Defendant County of
Allegheny on the basis that Mr. Kengerski did not engage in protected activity. ECF
90; ECF 91. On appeal, the Third Circuit reversed that decision, concluding that Mr.
Kengerski made the requisite showing. Kengerski v. Harper, 6 F.4th 531 (3d Cir.
2021). The Third Circuit then remanded the case for this Court to consider the sole
remaining issues left unresolved on summary judgment: (1) whether there was a
causal connection between Mr. Kengerski’s protected activity and his termination
(i.e., the causation element of Mr. Kengerski’s prima facie burden); and (2) if so,
whether the County’s reason for terminating Mr. Kengerski was legitimate or
pretextual. 1 See id. at 541.
As it’s the County moving for summary judgment (ECF 56), the County must
show “that there is no genuine dispute as to any material fact and [that it] is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). In making this determination, “all reasonable
inferences from the record must be drawn in favor of the nonmoving party and the
court may not weigh the evidence or assess credibility.” Goldenstein v. Repossessors,
The parties agree that these are the two remaining issues on the County’s motion
for summary judgment. ECF 102, pp. 1-2; ECF 103, p. 1.

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Inc., 815 F.3d 142, 146 (3d Cir. 2016) (cleaned up). The County bears the initial
burden to show the lack of any genuine dispute of material fact, and “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party,”
summary judgment is improper. Id. (citation omitted).
After carefully considering the parties’ briefs, the record, and oral argument, 2
the Court finds that the issues of causation and pretext are overwhelmed by factual
disputes, and thus require a jury to weigh the evidence and the credibility of various
individuals.

Further, as evidenced by these disputes, the Court finds that Mr.

Kengerski has provided sufficient evidence to survive summary judgment. Summary
judgment is therefore improper, so the Court denies the County’s motion as to Mr.
Kengerski’s Title VII retaliation claim.
To establish a prima facie Title VII retaliation claim, Mr. Kengerski “must
tender evidence that … there was a causal connection between [his] participation in
the protected activity and the adverse employment action.” 3 Moore v. City of Phila.,
461 F.3d 331, 340-41 (3d Cir. 2006) (cleaned up). If Mr. Kengerski makes this
showing, and the County presents a “legitimate, non-retaliatory reason for its
conduct” (which it has), Mr. Kengerski “must produce some evidence from which a
jury could reasonably [conclude]” that the County’s “proffered explanation was false,

The Court held a status conference on September 8, 2021, inviting counsel to submit
supplemental briefs on the two remaining issues. ECF 99; ECF 100. The Court then
held oral argument on these issues on October 5, 2021. ECF 106.
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Mr. Kengerski’s prima facie burden has three elements. He “must tender evidence
that (1) [he] engaged in activity protected by Title VII; (2) the employer took an
adverse employment action against [him]; and (3) there was a causal connection
between [his] participation in the protected activity and the adverse employment
action.” Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (cleaned up).
Only the third element is at issue here.
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and that retaliation was the real reason for the adverse employment action.” See id.
at 342 (cleaned up).
First, as to the issue of causation at the prima facie stage, as the Third Circuit
in this case emphasized, the Court must consider “the circumstances as a whole[.]”
Kengerski, 6 F.4th at 541, n.9 (citation omitted). Relevant considerations that can
show a causal connection between the protected activity and the adverse employment
action include any intervening antagonism by the employer, inconsistent
explanations for the adverse action, or other similar circumstantial evidence that
could support an inference of a causal connection. Id.; Thomas v. Bronco Oilfield
Servs., 503 F. Supp. 3d 276, 311 (W.D. Pa. 2020) (Hornak, C.J.) (citations omitted).
Causation is a fact-specific and contextual determination. Budhun v. Reading
Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir. 2014) (“Whether a causal link exists
must be considered with a careful eye to the specific facts and circumstances
encountered.” (cleaned up)); Kachmar v. SunGard Data Sys., 109 F.3d 173, 178 (3d
Cir. 1997) (“The element of causation, which necessarily involves an inquiry into the
motives of an employer, is highly context-specific.”). And a “plaintiff may establish
causation through evidence gleaned from the record as a whole, and viewed with a
wider lens.” Thomas, 503 F. Supp. 3d at 311, 315 (cleaned up); see also CarvalhoGrevious v. Delaware State Univ., 851 F.3d 249, 259-60 (3d Cir. 2017) (“[T]he plaintiff
must produce evidence sufficient to raise the inference that her protected activity was
the likely reason for the adverse employment action. … These [listed factors] are not
the exclusive ways to show causation, as the proffered evidence, looked at as a whole,
may suffice to raise the inference.” (cleaned up)).
Second, because the County has articulated a legitimate, non-retaliatory
reason for Mr. Kengerski’s termination, Mr. Kengerski must show pretext by
“demonstrat[ing] weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions from which a reasonable juror could conclude that the [County’s]
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explanation is unworthy of credence, and hence infer that the employer did not act
for the asserted non-retaliatory reasons.” Carvalho, 851 F.3d at 262 (cleaned up).
That is, to survive summary judgment, Mr. Kengerski “must point to some evidence,
direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve
the employer’s articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause
of the employer’s action.” Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)
(cleaned up).

Just as causation is a fact-specific and contextual determination,

Budhun, 765 F.3d at 258, “[d]etermining pretext is a fact-based inquiry,” Kautz v.
Met-Pro Corp., 412 F.3d 463, 468 (3d Cir. 2005).
Finally, as many courts have recognized, while the issues of causation and
pretext are separate elements of a retaliation claim, the evidence showing the two
may be the same. See, e.g., Carvalho, 851 F.3d at 262 (“[As to pretext,] [w]e rely
largely on the evidence produced in support of [Plaintiff’s] prima facie case,
recognizing that nothing about the McDonnell Douglas formula requires us to ration
the evidence between one stage or the other.” (cleaned up)); Thomas, 503 F. Supp. 3d
at 315 (concluding that certain evidence “would both support a jury finding of
causation and a finding that the Defendant’s non-discriminatory reasons were
pretextual”).
Turning to the record here, and drawing all reasonable inferences from the
record in Mr. Kengerski’s favor, as required, there are numerous factual disputes and
credibility determinations that must be resolved, rendering summary judgment
inappropriate. Indeed, these disputes exist because the parties point to competing
evidence, demonstrating that Mr. Kengerski has done enough at this stage to survive
summary judgment.
By way of example—and this is not exhaustive—the parties dispute whether
Warden Harper and Deputy Warden Wainwright ignored, due to animus, Mr.
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Kengerski’s allegedly legitimate complaints and requests following the latter’s
participation in protected activity. The parties also dispute whether Mr. Kengerski
was a target within the workplace following his protected activity, and whether
Warden Harper and Deputy Warden Wainwright learned of and ignored this
dynamic. Relatedly, Mr. Kengerski points to the purported fact that Warden Harper
and Deputy Warden Wainwright were quick to investigate Mr. Kengerski when an
accusation was lodged against him, but slow to investigate any complaints lodged by
Mr. Kengerski. See, e.g., Nguyen v. AK Steel Corp., 735 F. Supp. 2d 346, 372 (W.D.
Pa. 2010) (Lenihan, M.J.) (“[W]here the plaintiff comes forward with evidence to show
the company investigated him differently because of his national origin, an inference
of discrimination can be drawn.” (citation omitted)).
It’s further disputed whether Warden Harper and Deputy Warden Wainwright
investigated Mr. Kengerski differently from others, including by failing to obtain a
report (or any response to the accusations) from Mr. Kengerski before terminating
him. The parties likewise point to competing evidence on whether Mr. Kengerski was
held to a different standard than others, including whether various “zero-tolerance
policies” were enforced more harshly and strictly against Mr. Kengerski than others.
A jury also needs to assess various individuals’ credibility.

For example,

Warden Harper decided that Mr. Kengerski should be escorted from the premises for
violating workplace policies after purportedly weighing the credibility of various
individuals’ reports. Yet a jury could reasonably conclude that Warden Harper lacks
credibility, given that he failed to obtain a report from Mr. Kengerski before he
apparently weighed Mr. Kengerski’s credibility. Additionally, Warden Harper made
the decision to have Mr. Kengerski escorted from the premises only a short time after
he received all of the relevant reports, upon which he weighed the credibility of the
individuals involved and reviewed video footage of the incidents.

A jury could

reasonably conclude that Warden Harper’s account of his decision-making is not
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credible, considering the circumstances and timeframe. At bottom, while a jury could
believe Warden Harper, what matters is that the issues of credibility must be decided
by a jury.
The Court emphasizes that this is not an exhaustive summary of the factual
disputes material to the issues of causation and pretext. Ultimately, it suffices to say
that because there are genuine disputes of material fact, and because Mr. Kengerski
has pointed to sufficient evidence to survive summary judgment, the Court denies the
County’s motion for summary judgment as to the Title VII retaliation claim.
Finally, the Court also denies the County’s motions to strike. ECF 73; ECF 74.
Neither motion is integral to, nor affects, the Court’s decision on the motion for
summary judgment, so the motions to strike are denied as moot. To be clear, the
Court finds that material factual disputes remain even if the introduction and factual
background in Mr. Kengerski’s principal summary-judgment brief, as well as Mr.
Kengerski’s declaration, are excised from the summary-judgment record. 4
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For all of these reasons, this 19th day of October, 2021, it is hereby
ORDERED that Defendant’s motion for summary judgment (ECF 56) is DENIED
Even if the Court were to consider the County’s motions to strike, they would be
denied on the merits. The introduction and factual background in Mr. Kengerski’s
brief do not violate Local Rule 56; nor do they prejudice the County, as the Court
derives the facts from the parties’ concise statements of material facts and documents
of record cited in the concise statements. And with respect to Mr. Kengerski’s
allegedly sham declaration, the County has failed to meet its burden to strike the
declaration. The County provides only a few examples of purportedly impermissible
statements in Mr. Kengerski’s declaration, by pointing to various portions in his
deposition transcript. The County then summarily states that it would be too
burdensome and time consuming to address how Mr. Kengerski’s entire declaration
is a sham declaration. The County instead invites the Court to review the 381-page
deposition transcript so the Court could see that “[Mr.] Kengerski was questioned
extensively on every issue raised in his complaint, his answers to discovery, and the
material issues in this lawsuit.” ECF 73, p. 6. But without a more specific motion,
which identifies each averment compared against each inconsistent or contradictory
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as to Plaintiff’s Title VII retaliation claim. 5

It is further ORDERED that

Defendant’s motions to strike (ECF 73; ECF 74) are DENIED as moot.

BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge

portion of deposition testimony, the County cannot meet its burden to obtain the relief
it seeks.
Plaintiff’s other claims have already been dismissed from this case, were not
appealed as part of the prior Third Circuit appeal, and are therefore waived. See In
re Titus, 916 F.3d 293, 302 (3d Cir. 2019) (“An issue is waived on remand if it was not
raised in a party’s prior appeal.” (cleaned up)).

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