Zelinski v. Pennsylvania State Police

• Decision Date: 10 September 2003
• Docket Number: No. 3:CV-01-1979.,3:CV-01-1979.
• Citation: 282 F.Supp.2d 251
• Parties: Laura ZELINSKI Plaintiff v. PENNSYLVANIA STATE POLICE, Commonwealth of Pennsylvania, Lou Altieri, Richard Weinstock.
• Court: U.S. District Court — Middle District of Pennsylvania

282 F.Supp.2d 251

Laura ZELINSKI Plaintiff v. PENNSYLVANIA STATE POLICE, Commonwealth of Pennsylvania, Lou Altieri, Richard Weinstock.

No. 3:CV-01-1979.

United States District Court, M.D. Pennsylvania.

September 10, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Spero T. Lappas, Serratelli, Schiffman, Brown & Calhoon, P.C., Harrisburg, PA, for Plaintiff.

Sarah C. Yerger, Office of Attorney General, Harrisburg, PA, Alexia Kita Blake, Hourigan, Kluger & Quinn, PC, Scranton, PA, James P. Golden, Jane B. LaPorte, Hamburg & Golden, P.C., Thomas

Moshang, III, Philadelphia, PA, Kimberly D. Borland, Borland & Borland, Wilkes-Barre, PA, for Defendants.

MEMORANDUM

VANASKIE, Chief Judge.

Plaintiff Laura Zelinski commenced this action on October 15, 2001, asserting claims under 42 U.S.C. §§ 1983, 1985, 1988, and 2000e, the First and Fourteenth Amendments to the United States Constitution, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 955. (Complaint, Dkt. Entry 1, ¶ 9.) Zelinski was employed as a Trooper by Defendants, the Commonwealth of Pennsylvania and the Pennsylvania State Police ("PSP"). She claims that the individual Defendants, Corporal Louis Altieri and Trooper Richard Weinstock, exposed her to a sexually hostile work environment and then caused her to receive an adverse position transfer in retaliation for her complaining of inappropriate conduct. The Complaint contains 11 counts, the first four of which are against the PSP for, respectively, "sexual harassment/discrimination under federal law," "sexual harassment/discrimination under state law," "unlawful retaliation under federal law," and "unlawful retaliation under state law." Counts 5 through 8 assert the same claims against the Commonwealth of Pennsylvania. Count 9 claims that defendant Altieri violated Zelinski's civil rights, and Count 10 asserts that Weinstock violated her civil rights. Count 11 claims that the defendants engaged in a conspiracy to violate Zelinski's civil rights.¹

Currently pending before the Court are Weinstock's motion to dismiss, (Dkt. Entry 9); Weinstock's motion for summary judgment, (Dkt. Entry 36); Altieri's, PSP's, and the Commonwealth of Pennsylvania's (collectively, the "Commonwealth Defendants") motion for summary judgment, (Dkt. Entry 40); and the Commonwealth Defendants' motion to strike portions of Zelinski's brief in opposition and answer to the Commonwealth Defendants' statement of material facts because they are purportedly based upon incompetent evidence. (Dkt. Entry 57.)

The motion to dismiss will be denied because the complaint satisfies the liberal pleading requirements of Fed.R.Civ.P. 8 and sufficiently alleges Weinstock's role as a supervisor and superior officer to Zelinski, as well as severe and pervasive sexual harassment. Weinstock's motion for summary judgment, however, will be granted. He is not subject to liability under 42 U.S.C. § 2000e because there is no individual liability under Title VII of the Civil Rights Act of 1964. Although the face of the complaint satisfies Rule 8, it is clear after discovery that Weinstock, as Zelinski's co-worker, did not act under color of law during the incidents of sexual harassment —a necessary element of the § 1983 claim alleged in Count 10. Summary judgment is also appropriate on Count II because Zelinski has failed to produce evidence that supports her allegation of a conspiracy to deny her federal civil rights under 42 U.S.C. § 1985.

The Commonwealth Defendants' motion to strike will be denied, but their motion for summary judgment will be granted. First, it is clear that the Eleventh Amendment bars Zelinski's PHRA, § 1983 and § 1985 claims against the Commonwealth and the PSP. Second, Altieri cannot bear any liability under Title VII. Third, Zelinski has not presented evidence sufficient to show a hostile work environment. Fourth, Zelinski has not proffered evidence sufficient to show that she engaged in protected activity prior to her transfer and has not presented any evidence that her transfer was causally related to a conversation concerning Weinstock's inappropriate conduct that she had with defendant Altieri ten months before her transfer. Finally, the conspiracy claim also cannot survive summary judgment because Zelinski has not presented evidence showing an agreement among the defendants to deprive Zelinski of her civil rights.

I. BACKGROUND

Laura Zelinksi began employment with the PSP in April 1996 as a Trooper. (Commw. Def. Stat. of Material Facts, Dkt. Entry 42, ¶ 2; Ex. A, Dkt. Entry 43, Zelinski Dep. at 7-8.)² Effective May 1, 1999, she was detached to the Bureau of Drug Law Enforcement ("BDLE"), Troop P-Tactical Narcotic Team ("TNT"). (Commw. Def. Stat. of Material Facts, Dkt. Entry 42, ¶ 5.) The TNT unit specialized in undercover drug investigations and consisted of Troopers Zelinski, Sean Murray, Daniel Wigley, Richard Weinstock, and Corporal Louis Altieri, the unit supervisor. (Id., ¶¶ 3-4.)

Upon her detachment to the TNT unit, Zelinski underwent a training period during which she was coached by officers of another Troop. (Id., ¶ 5.) As part of her training, Zelinski attended a week long wiretap training class in Hershey, Pennsylvania from June 22, 1999, through June 26, 1999. (Ex. A, Dkt. Entry 43, Zelinski Dep. at 35-37.) Weinstock also attended this training. Zelinski and Weinstock were staying at the same hotel. On the second or third day of the class Zelinski accepted an offer from Weinstock to drive her to class. (Id. at 35-36.) Zelinski testified that on the way back to the hotel after the class the following transpired:

[Weinstock] began the conversation with saying that he was attracted to me since he met me at April's class, which was the basic drug investigators course. And he started to use the analogy that, do you see those shoes that you are wearing? And I didn't know exactly where he was going with that. And I said what do you mean? He said—this is as we're driving toward the hotel. He said, you wouldn't wear the same pair of shoes every day would you? And I said, Rich I just met your wife. We haven't even started working together yet. And he put his hand on my knee at the time and I brushed it off. I said, you shouldn't be talking to me like that. As we were driving, I said, we work together. He said, but wouldn't it be neat? I said, no. I said, I don't feel that way. I said, I don't think that's appropriate. And he continued to say that he wanted to come back to my room to give me a full body massage.

We were supposed to meet Trooper Dan Wigley and Sergeant Robbie Castner that night for dinner. They were there for other training. And I guess we were supposed to meet them at 6.

As soon as we pulled into the hotel, I felt very uncomfortable. I said, I'm going to go shopping. I'll see you later. And I left. I went to the outlets in Hershey and I came back late—it had to be 6:30 or 7:00 that night—and went to my room. I didn't have any other contact with him that night.

(Id. at 36-37.)

Zelinski states that she told another trooper attending the class, Trooper Jamie Clark, and her two coaches, Troopers Gina Tasselmeyer and William Schutter, about the incident. (Commw. Def. Stat. of Material Facts, Dkt. Entry 18, ¶ 18; Ex. A, Dkt. Entry 43, Zelinski Dep. at 38-39.) Zelinski did not inform anyone else of the incident at that time.

Zelinski did not have any other contact with Weinstock until August of 1999. (Ex. A, Dkt. Entry 43, Zelinski Dep., at 41.) On August 4, 1999, Zelinski and Weinstock were assigned to ride a van together on a surveillance operation. (Commw. Def. Stat. of Material Facts, Dkt. Entry 18, ¶ 20.) Zelinski testified that at the beginning of this operation, Weinstock said he wanted to have sex with her and had been thinking about it since June. (Ex. A., Dkt. Entry 43, Zelinski Dep., at 42.) He then proceeded to describe in graphic terms what he wanted to do to her. (Id. at 42-43.) Zelinski responded by telling Weinstock that he made her feel uncomfortable. (Id. at 46.) They then proceeded to a mini-mart to obtain a beverage, met another trooper, and completed the surveillance assignment. (Id. at 43-44.)

It is undisputed that Weinstock did not make any other sexual advances towards Zelinski after the August 4, 1999 incident. It is further undisputed that Zelinski had no contact with Weinstock for the next several months as he was assigned to an investigation in Lancaster. (Id. at 73-74.)

On August 25, 1999, Zelinski acknowledged receipt of the PSP Sexual Harassment Policy. (Ex. J., Dkt. Entry 43.) The policy proscribed any sexual harassment, which it defined as "unwelcome verbal or physical conduct of a sexual nature, sexual advances, or requests for sexual favors." (Ex. H, Dkt. Entry 43, at 2.) The policy further provided that "[a]ny person who believes they have been sexually harassed, and wants to report the incident to the Department, shall contact their immediate supervisor, the EEO Liaison, or the EEO officer." (Id. at 6; emphasis added.)

Zelinski's immediate supervisor was Corporal Altieri. It is clear that she did not go to Altieri to report Weinstock's sexual advances. She testified, however, that she made Corporal Altieri aware of the offensive conduct in a conversation that occurred at the end of an undercover surveillance operation on October 14, 1999. Zelinski testified that, at the end of their shift on the night of October 14, 1999, the following transpired:

[W]e were en route back to the barracks, I believe. Corporal Altieri asked me, how are you getting along with other members of the unit? I said, well, we haven't really worked together too much ....

I told him if I had to sit and do surveillance with Trooper Weinstock ... that I would feel uncomfortable ... and then I told him what had taken place at the wire tap class, that he was making advances towards me.

At that time I had just met his wife. And then the next day he is saying...