Zezulewicz v. Port Authority of Allegheny County

• Decision Date: 13 November 2003
• Docket Number: Civil Action No. 00-2370.
• Citation: 290 F.Supp.2d 583
• Parties: Barbara A. ZEZULEWICZ, Plaintiff, v. PORT AUTHORITY OF ALLEGHENY COUNTY, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

290 F.Supp.2d 583

Barbara A. ZEZULEWICZ, Plaintiff, v. PORT AUTHORITY OF ALLEGHENY COUNTY, Defendant.

Civil Action No. 00-2370.

United States District Court, W.D. Pennsylvania.

November 13, 2003.

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William B. Manion, Barbara A. Zezulewicz, Pro Se, Pittsburgh, PA, for plaintiff.

William J. Klemick, Patrick F. Kilker, Lisa M. Passarello, William L. Doepken, Vivian M. Luna, Eckert, Seamans, Cherin & Mellott, Pittsburgh, PA, for defendant.

OPINION

COHILL, Senior District Judge.

Plaintiff Barbara A. Zezulewicz asserts claims against defendant Port Authority of Allegheny County ("Port Authority"), her former employer, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 and 42 U.S.C. § 1983. She further alleges violations of the First Amendment, Fourteenth Amendment, 48 U.S.C. § 1985, 42 U.S.C. § 1986, 42 U.S.C. § 1988, the Family Medical Leave Act ("FMLA"), and avers various related state law claims.

We have jurisdiction over plaintiff's federal claims under 28 U.S.C §§ 1331 and 1343, and supplemental jurisdiction over state law claims under 28 U.S.C. § 1367.

Before the Court is a motion for summary judgment on all claims, filed by defendant Port Authority (Doc. 12). Plaintiff Barbara Zezulewicz has filed a brief in opposition, to which the defendant has responded.

Having now considered the parties' submissions and the applicable law, for the reasons set forth below we will grant defendant's motion in its entirety.

I. Background

Barbara Zezulewicz was hired by the Port Authority as a secretary to the Director of Facilities in South Hills Junction. Pl.'s Dep. at 10, 12. She began her employment in November or December 1991, with a retroactive seniority date of August 15, 1987. Pl.'s Dep. at 29, Def.'s Ex. D. The retroactive seniority date was the result of the implementation of a Consent Decree in the case of United States of America v. Port Authority of Allegheny County, Civil Action No. 91-1694 (E.D.Pa. 1992). In that case, the government charged the Port Authority with discrimination on the basis of race, through "job housing," a program which set aside employment positions for black applicants to the exclusion of non-black applicants. Def.'s Ex. D. The Consent Decree was entered on October 7, 1991. As a result of the Consent Decree, Zezulewicz was hired into a permanent position as a Secretary I. Pl.'s Dep. at 35. She held the position of Secretary I in the Operations/Facilities division throughout her employment with the Port Authority. Compl. at ¶ 5, Pl.'s Dep. at 35.

The plaintiff sought to upgrade her secretarial position. In a letter dated February 12, 1999, Zezulewicz complained to Gwendolyn Allen, Director of the Office of Equal Opportunity of the Port Authority, that she had applied for approximately 15 to 18 positions within the Port Authority, and could not advance into any of them. Allen Letter, Def.'s Ex. B. Plaintiff asserted that she was being subjected to discriminatory treatment in the form of retaliation for having filed two previous charges of discrimination with the EEOC. Pl.'s Dep. at 50, 51, 242; Allen Letter, Def.'s Ex. B. Plaintiff stated that she was denied a promotion because Larry Lutheran, Director of Personnel, and another member of the Personnel Department were involved in the Justice Department investigation that led to the Consent Decree. Allen Letter, Def.'s Ex. B.; Pl.'s Dep. at 39.

On March 12, 1999, while Zezulewicz was on medical leave, she was offered the position of Secretary II in the Claims Department. Compl. at ¶ 8; Pl.'s Dep. at 95, 209. She was given several days to consider whether to accept the position. Zezulewicz testified at her deposition that illness prevented her from going to interview for the position, and that she could not even find out what the job entailed. Pl.'s Dep. at 95-98. Ultimately, the plaintiff requested that the job be given to the next most senior employee. Pl.'s Dep. at 98.

Port Authority secretaries are represented by Local 85, Amalgamated Transit Union ("Local 85") for collective bargaining purposes. Robin Gray was Manager of Employee Relations at the Port Authority. Her duties included administering the Collective Bargaining Agreement ("CBA") and overseeing employee discipline and grievances. Gray Decl. at ¶ 1.

As part of the collective bargaining process, the Port Authority and Local 85 agreed to a Memorandum of Understanding on January 18, 2000, that defined the secretaries' job classifications and salaries, as well as the seniority procedures for posting and filling job vacancies. Memorandum, Def.'s Ex. H.

Prior to the Memorandum, secretarial vacancies were filled based on seniority and qualifications. The Memorandum imposed an additional skills and knowledge test on secretaries who wanted a higher classification, and defined the bidding procedure for secretarial positions. Gray Decl., Def.'s Ex. F at ¶ 3. Under the Memorandum, secretaries may bid on all posted jobs to upgrade their position. All bidders take a typing and computer skills test. The most senior employee passing the test is awarded the job for a 60-day trial period. If management determines that the employee is not qualified, the employee may return to the previous position. CBA, Def.'s Ex. G Section 903; Memorandum, Def.'s Ex. H at Section 903.

The Memorandum amended Part IX (Secretaries), sections 901-903 of the CBA. Memorandum, Def.'s Ex. H. A majority of the secretaries voted in favor of the Memorandum. Gray Decl., Def.'s Ex. F at ¶ 2; Pl.'s Dep. at 191. Zezulewicz opposed the document. Pl.'s Dep. at 183. Several employees, including the plaintiff filed a grievance with the Pennsylvania Employee Relations Board. Pl.'s Dep. at 184-188.

As part of the bargaining process leading up to the Memorandum, Local 85 and the Port Authority created a job evaluation committee to revise secretarial job descriptions. Members of the committee were Charlene Kilvanick (secretary and Union official), Sharon Lawry (Union official), Larry Lutheran (Director of Employee Relations), Bob Fulton (Assistant Business Agent for Local 85), and Robin Gray. Gray Decl., Def.'s Ex. F at ¶ 4. In late fall 1999, the job evaluation committee evaluated all of the secretaries, including the plaintiff; 13 positions were upgraded, 13 positions were not upgraded, and 2 new positions were created. Zezulewicz's position remained at Grade I. Gray Decl., Def.'s Ex. F at ¶ 4. Zezulewicz had the most seniority on 11 of the 13 upgraded positions, and on 1 of the 2 newly created positions. Def.'s Ex. I.

Plaintiff asserts that 26 of 28 Port Authority secretaries were upgraded from Secretary I to Secretary II, and that she was one of the two secretaries who was not upgraded. Compl. at ¶ 5, Pl.'s Dep. at 35.

Robyn Gray, who was on the job evaluation committee, stated that the committee found that the plaintiff performed below the acceptable level; she could not retrieve her work products from the computer because she did not know her password, and she could not find any documents to show the committee. Gray Decl. at ¶ 5. Plaintiff testified that the committee visited her for five minutes, and that she had just returned from sick leave. Pl.'s Dep. at 188.

An exchange of emails between Lori Carter-Evans, Director of Facilities at South Hills Junction, and Robyn Gray, on January 12 and 13, 2000, addressed the upgrading of secretarial positions. It was Carter-Evans' opinion that the plaintiff's position should be upgraded along with the others, and she requested that Zezulewicz's position be upgraded to the 1A level. Def.'s Ex. E.

Zezulewicz asserts that she applied for promotions to various bargaining unit and non-bargaining unit positions, but was turned down. Pl.'s Dep. at 10, 42, 207, 209. She had the opportunity to apply for other upgraded positions but did not. Pl.'s Dep. at 213-214. She does not know if any of the employees who were hired or promoted instead of her were more or less qualified than she was, or were chosen based on unlawful criteria. Pl.'s Dep. at 44, 214-222, 231, 253, 256, 276.

She does not claim that she was not upgraded based on her age or race. Pl.'s Dep. at 35-36.

Plaintiff contends she was told that Larry Lutheran, Manager of Employee Relations, didn't like her and was out to get her as a result of her opposition to the "job housing." Compl. at ¶ 10, 11; Pl.'s Dep. at 88-89. She also asserts that Union Representative Charlene Kilvanick told her that "the reorganization is planned to force you into retirement." Compl. at ¶ 12.

Plaintiff does not blame the Union for her difficulties. She testified that the Union did not retaliate against employees for filing charges with the EEOC, that the Union did not participate in the job housing practice, and that the Union did not engage in racial, gender, or age discrimination. Pl.'s Dep. at 195-196.

Zezulewicz took three weeks of accrued sick leave in February 2000, and officially retired from the Port Authority on March 1, 2000. Pl.'s Dep. 179-180. She bid on a posted job in the claims department before that time, but was ineligible for the post after she retired on March 1. Pl.'s Dep. at 163. Several new secretarial positions were posted in February, 2000 after the upgrades were in place. Zezulewicz had enough seniority to qualify for several of these positions, but did not apply. Pl.'s Dep. at 170-171. She was not fired from her job, but argues that she was constructively discharged. Pl.'s Dep. at 155-156. She testified that "I was at the end of my rope as far as trying to advance myself." Pl.'s Dep. at 159.

Zezulewicz timely filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging retaliation. Def.'s Ex. C. The Commission issued a right to sue letter on August 29, 2000, and this action followed.

II. Summary Judgment Standard

Summary...