By David Worley
In Kosek v. Luzerne County (116 FEP Cases 1244 (M.D. Pa. 2012)), the court denied the County’s summary judgment motion concerning a discrimination lawsuit brought by a Corrections Counselor. The Officer claimed that the County had failed to promote the most qualified candidate for discriminatory reasons, and, although later corrected its action, did so only after the Correction Counselor had filed a grievance and separate lawsuit.
The court decided two issues. First, whether the corrective action taken by the employer after the failure to promote mandated summary judgment on the grounds that the defendant was already made whole (by being promoted). The second issue was somewhat more nuanced: Whether, given the facts alleged, the jury must reasonably find the non-discriminatory reasons offered by the employer are pretextual, or merely that a jury may find these reasons pretextual.
Kosek, a female corrections counselor, was passed over for a promotion. The promoted coworker, a male, had less seniority and what the employer argued were comparable qualifications. In reality, Kosek had more education, a higher graduating class rank from the same school as the promoted employee, a second degree in a related, useful field, and sufficient experience. Kosek graduated magna cum laude, whereas the coworker graduated in the bottom 5%.
The first issue, whether the plaintiff’s claim could survive although she had been promoted, turned on the filing date of the claim and the date of the promotion.
At the time Plaintiff filed this action, she had not been assigned to the correctional counselor position at issue, and had not been awarded back bay and seniority. Therefore, at the time of filing, Plaintiff had suffered an adverse employment action for which no relief had been granted. After filing this action, Plaintiff may have received some of the relief she is potentially entitled to under Title VII.
The court then turned to the summary judgment standard regarding the employer’s non-discriminatory reasons for failing to promote the plaintiff. The plaintiff argued that summary judgment is improper when an issue of material fact exists, and a jury could reasonably find the employer’s reasons to be pretextual. The defendant took the position that the plaintiff could not prove by a preponderance of the evidence that the reasons were pretextual. Essentially, the defendant insists the plaintiff must allege facts that indicate a jury would find in her favor. However, the court, finding in favor of the plaintiff, determined that the facts alleged only be enough that a jury could find in her favor. The facts were clearly sufficient for this lower standard.
