Kimes v. Univ. of Scranton, Civil No. 3:14–CV–00091.

• Decision Date: 25 August 2015
• Docket Number: Civil No. 3:14–CV–00091.
• Parties: Lisa KIMES, Plaintiff v. UNIVERSITY OF SCRANTON, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

126 F.Supp.3d 477

Lisa KIMES, Plaintiff

v.UNIVERSITY OF SCRANTON, Defendant.

Civil No. 3:14–CV–00091.

United States District Court, M.D. Pennsylvania.

Signed Aug. 25, 2015.

Ari R. Karpf, Jeremy M. Cerutti, Mark T. Sottile, Karpf, Karpf & Cerutti, P.C., Bensalem, PA, for Plaintiff.

Nancy Conrad, White & Williams LLP, Center Valley, PA, for Defendant.

MEMORANDUM

MATTHEW W. BRANN, District Judge.

Currently pending before this Court is Defendant University of Scranton's (the "University") Motion for Summary Judgment (ECF No. 44) and accompanying statements of facts and legal briefs, (ECF Nos. 45, 46, 54, 55), as well as Plaintiff Lisa Kimes' brief in opposition and reply statement of facts. (ECF Nos. 52, 53). The matter has been fully briefed and is now ripe for disposition. For the following reasons, the Motion for Summary Judgment is granted in part and denied in part.

I. BACKGROUND¹

On May 12, 2008, Ms. Kimes was hired by the University's Department of Public Safety (the "Department") as a Public Safety Officer. (ECF No. 46, Ex. B).

Throughout most of her time with the Department, Ms. Kimes' supervisors consisted of Chief of Police Donald Bergmann, Captain Thomas Cadugan, Sergeant Thomas Savero, and Sergeant Kipp Adcock. See (ECF No. 52, Ex. LL–OO). Ms. Kimes was the only female officer on her shifts. Id. at Ex. KK, 443:22–25; 444:1–6.

On November 11, 2008, Ms. Kimes received her first performance evaluation; her performance at the time was rated as "meets or exceeds expectations"² without any negative comments. (ECF No. 46, Ex. C). On June 9, 2009, Ms. Kimes received a second mostly positive performance evaluation, again noting that her performance "meets or exceeds expectations." Id. at Ex. D.

On October 24, 2009, Ms. Kimes completed Act 120 Municipal Police Officers' Education and Training after graduating from the Lackawanna College Police Academy and received a pay raise accordingly.Id. at Ex. E. On February 13, 2010, Ms. Kimes became a sworn police officer with the Department and received another pay raise. Id. at Ex. F.

A. Disciplinary History and FMLA Leave

In 2009, Ms. Kimes was reprimanded by Sergeant Savero for allegedly leaving her assigned patrol zone without any coverage while she used the gym facilities. (ECF No. 53, Ex. M). Ms. Kimes disputed this accusation, and felt her actions were "being scrutinized." Id. Consequently, she filed a complaint with Captain Cadugan to address this allegedly disparate treatment. Id. Captain Cadugan did not investigate or take any action in response. Id. at Ex. A.

Beginning on August 4, 2010 and continuing through 2012, Ms. Kimes was issued a series of reprimands relating to various alleged infractions, including tardiness, failure to follow proper procedures, and failure to follow orders. On that date, Ms. Kimes received a verbal reprimand regarding her untimely vacation requests, tardiness, and excessive break times. (ECF No. 46, Ex. G). On November 17, 2010, Ms. Kimes received a verbal reprimand for tardiness, wherein Sergeant Savero noted that it was "not the first instance where" he spoke with Ms. Kimes regarding her tardiness. Id. at Ex. H.

On February 22, 2011, Ms. Kimes was issued a reprimand for releasing a "mildly intoxicated" student, despite University policies that allowed officers to do so. (ECF No. 53, Ex. O). On May 17, 2011, Ms. Kimes was given two purses by library staff to place in lost and found. (ECF No. 46, Ex. I). Rather than place the purses in lost and found, Ms. Kimes placed the purses in her personal vehicle; for this, she was issued a written corrective notice. Id.

On June 10, 2011, Ms. Kimes was issued a written corrective notice for failing to attend a Student Affairs retreat. Id. at Ex. H. Ms. Kimes disputes the charge, and contends that her schedule was changed, causing her to be unable to attend. (ECF No. 53, Ex. G, 141:8–15). She alleged that Sergeant Savero fabricated the incident. Id. On July 2, 2011, she received a verbal reprimand for failing to patrol her assigned route. (ECF No. 46, Ex. K). On August 22, 2011, she was reprimanded for patrolling with another officer in the car. Id. at Ex. H.

On December 27, 2011, Ms. Kimes was reprimanded for repeatedly contacting her husband for advice on how to perform her job, rather than contacting a supervisor. Id. On January 28, 2012, Ms. Kimes was reprimanded for driving her patrol vehicle into a prohibited area and coming into contact with protestors after being instructed to avoid the area. Id. On July 10, 2012, Ms. Kimes was given a written corrective notice for failing to follow an order from Captain Cadugan to take down community advisories. Id. at Ex. L.

On December 9, 2011, Ms. Kimes submitted a request for intermittent Family Medical Leave Act ("FMLA") leave to care for her son, who was suffering from diabetes. (ECF No. 46, Ex. M). Ms. Kimes did not require any time off at the time of the request. Id. Ms. Kimes alleges that the University never discussed the request with her, nor did it ever notify her that the request had been approved. (ECF No. 53, Ex. A, ¶ 4).

On July 1, 2012, Ms. Kimes requested time off under the FMLA to care for her son. (ECF No. 46, Ex. H). Captain Cadugan later noticed that Ms. Kimes had been tagged in a Facebook photo at a bar at 1 a.m. on July 1, 2012, approximately four and one-half hours prior to requesting the time off. Id. at Ex. J, 336:18–337:9. Due to this revelation, Captain Cadugan interviewed Ms. Kimes to verify her request for FMLA leave.³ Id. at Ex. N, 59:9–60:24. During a meeting in July 2012, Captain Cadugan stated that Ms. Kimes appeared "inconsiderate" for calling in under her FMLA leave because the Department was short staffed at the time and other officers needed to cover her shift. Id. at Ex. U. Ms. Kimes complained of this incident to Chief Bergmann because she believed it was a violation of the FMLA; Chief Bergmann reiterated that the request was inconsiderate.⁴ Id.

B. Disparate Treatment

In the summer of 2012, Ms. Kimes was ordered to clean the Department's break room despite the fact that no other officer had ever been ordered to clean the break room because the Department had a cleaning staff. (ECF No. 53, Ex. G. 35:20–37:18). Sergeant Savero admitted in his deposition that officers are never assigned to clean the break room. Id. at Ex. OO, 29:1–7.

During her tenure with the University, Ms. Kimes was also subjected to several misogynistic comments. During her 2012 yearly review, Sergeant Savero informed Ms. Kimes that "he doesn't feel comfortable with female officers" and no longer wanted Ms. Kimes on his shift. (ECF No. 52, Ex. G, 40:5–16). Around that same time, Captain Cadugan informed Ms. Kimes that simply because her husband was a police officer did not mean that she should also be a police officer. Id. at 41:22–25. Captain Cadugan elaborated that his wife worked in a safe environment as a secretary, and asked Ms. Kimes if she would "like to work in an office where it's safe[.]" Id. at 42:1–5. He then stated that although he did not have an opening for a secretary, he had an open campus safety officer position. Id. at 42:6–10.

In October 2013, Chief Bergmann told Ms. Kimes that, because she is "a female" he understood how Scranton police officers "intimidated" her. Id. at 43:8–18. Finally, in 2013 she was told by Sergeant Adcock that she was gaining a reputation as a "crazy female activist." Id. at 150:5–11.

William Moran, who was employed by the Department from 2005 through 2010, observed Sergeant Savero exhibit "discriminatory behavior towards female officers" including making derogatory comments, such as "women shouldn't be officers" and "female officers shouldn't do this type of work."⁵ Id. at Ex. GG, ¶ 5. Matthew Parker, a former police officer with the University, similarly observed Sergeant Savero treat "Ms. Kimes drastically different than other male officers[.]" Id. at Ex. HH, ¶ 7. Mr. Parker observed Sergeant Savero assign Ms. Kimes menial and unwanted tasks; this included gathering other officers around and laughing while forcing Ms. Kimes to complete tasks in the rain. Id. at ¶¶ 9–10.

Erik Johnson, a police officer with the University since 2006, believed that Ms. Kimes was "definitely treated differently than other male officers in her position[.]" Id. at Ex. II, ¶ 16. Katherine Becker, a police officer with the Department from 2012 until 2014, stated that "gender played a major role" in the way both she and Ms. Kimes were treated. Id. at Ex. JJ, ¶ 26. She opined that it "seems to me that the University obviously and deliberately discriminates against female [o]fficers, requiring experienced female officers to do more training than other male officers and giving females less desirable assignments on campus." Id.

C. Altered Incident Report

On April 29, 2012, Ms. Kimes drafted an incident report describing a work accident in which Officer Eugene Groysman was injured (the "Incident Report"). Id. at Ex. P. As initially drafted, the Incident Report contained a reference to a phone call that Ms. Kimes placed to Captain Cadugan after the incident; Captain Cadugan did not answer the phone call, and did not return the call for approximately twenty minutes.Id. at Ex. Q, 21:14–17. Ms. Kimes included this information in the Incident Report because she believed that she was required to notify a supervisor when an officer was injured on the job. (ECF No. 53, Ex. G, 226:17–22).

Captain Cadugan reviewed the Incident Report and determined that, in his opinion, any reference to the unreturned phone call was not relevant to the incident, and therefore instructed Investigator Kevin Rude to request that Ms. Kimes remove the reference from the report. Id. at Ex. MM, 39:11–18. Mr. Rude agreed that the reference was not "pertinent" to the report. (ECF No. 46, Ex. Q., 19:20–24; 21:18–22). Ms. Kimes refused to remove the reference, so Captain Cadugan removed it instead. Id. Mr. Rude then brought the altered Incident Report to Ms. Kimes to sign, and placed a...