               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mrs. Karen M. Deter, an adult         :
individual; and Mrs. Diane Gresock,   :
an adult individual,                  :
                         Appellants   :
                                      :
                 v.                   :
                                      :
Borough of Sykesville, a Pennsylvania :      No. 500 C.D. 2019
Municipality                          :      Argued: February 11, 2020


BEFORE:      HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: February 28, 2020

             Karen M. Deter (Deter) and Diane Gresock (Gresock) (collectively,
Appellants) appeal from the Jefferson County Common Pleas Court’s (trial court)
March 28, 2019 order granting the Borough of Sykesville’s (Borough) Motion for
Summary Judgment (Summary Judgment Motion). Appellants present two issues for
this Court’s review: (1) whether the trial court erred by requiring Appellants to prove
that they were similarly situated to younger employees of the opposite sex who were
treated more favorably and then concluding that they failed to establish a prima facie
discrimination case; and (2) whether the trial court erred by requiring Appellants to
show that a majority of the Borough’s Council was aware of Appellants’ protected
activity and then determining that Appellants failed to establish a prima facie
retaliation case.
             On July 7, 2017, Appellants filed a Complaint against the Borough in the
trial court (Complaint). Therein, Appellants alleged: (1) gender discrimination under
the Pennsylvania Human Relations Act (PHRA)1 and Title VII of the Civil Rights Act
of 1964 (Title VII)2 (Counts I and IV); (2) age discrimination under the PHRA and
the Age Discrimination Employment Act (ADEA)3 (Counts II and III); and (3)
retaliation under the PHRA (Count V).              Appellants averred that the Borough
discriminated against them based on their age and sex and for reporting incidents of
sexual harassment by approving raises not commensurate with those approved for
younger male employees, threatening their jobs, and otherwise creating a hostile
work environment which caused them to resign.
             The male Borough employees were not named in the Complaint;
however, there were only six full-time employees for whom the Borough set the
terms and conditions of employment: Deter, Gresock, Nick Yamrick (Yamrick),
Terry Frantz (Frantz), Justin Arnold (Arnold) and Jimmy Dixon (Dixon).            See
Appellants’ Br. at 3. Gresock was the Borough’s secretary/treasurer and Deter was
the Borough’s assistant secretary/treasurer. Arnold and Dixon were laborers whose
duties included plowing snow, sweeping streets, working at the sewage plant, and
helping with the water facility. See Gresock Deposition (Depo.) at 11, Notes of
Testimony (N.T.), March 5, 2018 at 38-39. Frantz was a superintendent and assistant
sewage operator who supervised Dixon and Arnold. See Gresock Depo. at 11, N.T.,
March 5, 2018 at 39. Frantz also did the same laborer work as Dixon and Arnold.
See id. Yamrick was the Borough’s water commissioner. See id.
             By way of background, the Borough is governed by a Council of seven
members. On December 21, 2015, Council members Matthew Kosko (Kosko), Mack
Zimmerman (Zimmerman), Thomas Kundrich (Kundrich), Ronald Park (Park), James
Strouse (Strouse), and Gabriel Sweka, Jr. (Sweka) voted on the Borough employee


      1
        Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.
      2
        42 U.S.C. §§ 2000e – 2000e-17.
      3
        29 U.S.C. § 621.
                                              2
wage rates for the 2016 calendar year. Appellants claim that they received lower
raises than the male employees because they were female, and in retaliation for
complaints they purportedly made to former Council member Linda Mahlon
(Mahlon) and Kundrich about Kundrich touching their arms and backs when he
periodically came to the office. Appellants alleged that these acts violated Title VII
and the PHRA.
               On August 28, 2017, the Borough filed an Answer and New Matter to
Appellants’ Complaint. On September 5, 2017, Appellants filed a Reply to New
Matter. Thereafter, the parties proceeded with extensive discovery. On February 15,
2019, the Borough filed the Summary Judgment Motion.                       On March 18, 2019,
Appellants filed an Answer thereto. On March 28, 2019, the trial court granted the
Borough’s Summary Judgment Motion, and judgment was entered on April 15, 2019.
Appellants appealed to this Court.4            On April 29, 2019, the trial court directed
Appellants to file a Concise Statement of Errors Complained of on Appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b) (Rule 1925(b) Statement). On
May 20, 2019, Appellants filed their Rule 1925(b) Statement. On May 24, 2019, the
trial court filed its Rule 1925(a) Opinion.
               Initially,

               [s]ummary judgment is proper when, after pleadings are
               closed: (1) ‘there is no genuine issue of any material facts
               as to a necessary element of the cause of action or defense’;
               or (2) after the completion of relevant discovery ‘an adverse
               party who will bear the burden of proof at trial has failed to
               produce evidence of facts essential to the cause of action or
               defense which in a jury trial would require the issues to be
               submitted to a jury.’ Rule 1035.2 of the Pennsylvania Rules

       4
         “An order of a trial court granting summary judgment may be disturbed by an appellate
court only if the court committed an error of law . . . ; thus, our standard of review is de novo, and
our scope of review is plenary.” Desher v. Se. Pa. Transp. Auth., 212 A.3d 1179, 1185 n.6 (Pa.
Cmwlth. 2019) (quoting LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa.
2009)).
                                                  3
               of Civil Procedure, Pa.R.C.P. No. 1035.2. When
               considering a motion for summary judgment, a common
               pleas court must examine all facts and reasonable inferences
               deduced therefrom in a light most favorable to the non-
               moving party and ‘may only grant summary judgment
               where the right to such judgment is clear and free from all
               doubt.’ Summers v. Certainteed Corp[.], . . . 997 A.2d
               1152, 1159 ([Pa.] 2010) (internal quotations omitted).

Leibensperger v. Carpenter Techs., Inc., 152 A.3d 1066, 1073 (Pa. Cmwlth. 2016).
               Appellants first argue that the trial court erred by requiring Appellants to
prove that similarly situated male employees were treated more favorably, and
concluding that Appellants failed to establish a prima facie case of discrimination.5
Appellants contend that, because their claims are not based on the Equal Pay Act,6
but, rather, Title VII and the PHRA, a prima facie showing of this element is not
required. Appellants cite McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
to support their position. The Borough rejoins that the trial court properly relied upon
Summy-Long v. Pennsylvania State University, 226 F. Supp. 3d 371 (M.D. Pa. 2016),
aff’d, 715 F. App’x 179 (3d Cir. 2017), which expressly requires a prima facie
showing that “similarly situated employees of the opposite sex were treated more
favorably[,]” to establish a “case of pay discrimination based upon sex under Title
VII.” Id. at 395.
               At the outset,

               [t]he analytical model established by the [United States (]
               U.S.[)] Supreme Court in McDonnell Douglas . . . ,
               provides the burdens of proof that each party bears in an
               employment discrimination case. Briefly, the complainant
               bears the burden of establishing a prima facie case by
               showing that: (i) [s]he is in a protected class; (ii) [s]he is
               qualified for the position; (iii) [s]he suffered an adverse

       5
         Appellants did not address the issue of age discrimination in their brief to this Court. See
Appellants’ Br. at 3 n.1.
       6
         29 U.S.C. § 206(d)(1).


                                                 4
            employment action; and (iv) [s]he was discharged under
            circumstances that gave rise to an inference of
            discrimination. Once the complainant makes this initial
            case, the burden then shifts to the employer to articulate
            some legitimate, non-discriminatory motive for its action. If
            the employer does so, the complainant is then given the
            opportunity to demonstrate that the proffered reasons were
            pretextual. Id. at 802[.]

Spanish Council of York, Inc. v. Pa. Human Relations Comm’n, 879 A.2d 391, 397
(Pa. Cmwlth. 2005) (emphasis added).
            The U.S. District Court for the Western District of Pennsylvania, in
Knox v. PPG Industries, Inc. (W.D. Pa. No. 15-1434, filed March 15, 2018), held:

            To establish a prima facie case of pay discrimination
            under Title VII, a plaintiff must show that she was: (1) a
            member of a protected class; (2) qualified for the position[;]
            (3) suffered an adverse employment action; and (4)
            similarly situated non-protected employees, i.e.
            ‘comparators,’ were treated more favorably. Ezold v.
            Wolf, Block, Schorr [&] Solis-Cohen, 983 F.2d 509, 522 (3d
            Cir. 1993); Summy-Long . . . (citing Johnson v. McGraw-
            Hill Co[s.], 451 F. Supp. 2d 681, 691 (W.D. Pa. 2006)).
            ‘While ‘similarly situated’ does not mean identically
            situated, the plaintiff must nevertheless be similar in all
            relevant respects.’ Opsatnik v. Norfolk S[.] Corp., 335 F[.]
            App[’]x[] 220, 222-23 (3d Cir. 2009) (internal citations and
            quotation marks omitted). To meet this initial burden, a
            plaintiff must demonstrate that she was ‘performing
            work substantially equal to that of the [male] employees
            who were compensated at higher rates’ than she was.
            Summy-Long, 226 F. Supp. 3d at 395 (quoting Aman v. Cort
            Furniture Rental Corp., 85 F.3d 1074, 1087 (3d Cir. 1996)).
Knox, slip op. at 6-7 (emphasis added).
            The ‘precise elements of a plaintiff’s prima facie case may
            vary with the particular circumstances.’ Waldron v. SL
            Indus., 56 F.3d 491, 494 n.3 (3d Cir. 1995). Accordingly, a
            plaintiff can satisfy the fourth element of a prima facie case
            in a variety of ways. An inference of racial discrimination
            may arise when ‘similarly situated persons who are not
            members of a protected class [a]re treated more favorably.’

                                          5
            Kimble v. Morgan Props., 241 F[.] App[’]x[] 895, 898 (3d
            Cir. 2007). Similarly[]situated employees are those who
            ‘have dealt with the same supervisor, have been subject to
            the same standards and have engaged in the same conduct
            without such differentiating or mitigating circumstances
            that would distinguish their conduct or the employer’s
            treatment of them for it.’ Ogden v. Keystone Residence,
            226 F. Supp. 2d 588, 603 (M.D. Pa. 2002); see Red v.
            Potter, 211 F[.] App[’]x[] 82, 84 (3d Cir. 2006) (stating that
            ‘in order to show that an employee is ‘similarly situated,’
            all of the relevant aspects of employment need to be nearly
            identical’) (internal citation omitted).

Johnson v. Fed. Express Corp., 996 F. Supp. 2d 302, 317-18 (M.D. Pa. 2014), aff’d,
604 F. App’x 183 (3d Cir. 2015).
            Here, the trial court concluded that Appellants “failed to establish a
prima facie showing that they were similarly situated to the male employees[,]”
opining:

            [Appellants] invite the [trial c]ourt to interpret the ‘similarly
            situated’ requirement to include all Borough employees.
            Although perfect parity is not necessary, the Third Circuit
            has expressly rejected such an expansive interpretation.
            E.g., Monaco v. Am. Gen. Assur., Co., 359 F.3d 296 (3[]d
            Cir. 2004), Peake v. Pa. State Police, 644 F[.] App[’]x[]
            148 (3[]d Cir. 2016).
            Meanwhile, the [C]ourt in Nagle v. RMA, the Risk
            Management Ass[’n], 513 F. Supp. [2]d 383 ([] E.D. [Pa.]
            2007), clarified that different positions with different
            requirements, even if superficially comparable, did not
            satisfy the ‘similarly situated’ requirement necessary to
            establish wage discrimination. Id. at 389. Referencing
            decisions from other federal jurisdictions, it said that
            another employee was only similarly situated if his job
            required the same skill, effort, and responsibility as that
            performed by the plaintiff and was performed under similar
            conditions. Id. That was certainly not the case here.
            Each of the Borough’s male employees, both younger and
            older, performed duties that required entirely different
            training and skill sets than those utilized by the [Appellants]

                                           6
             as secretary/treasurer and assistant secretary/treasurer.
             Ranging from general laborer to supervisor of roads and
             water operator, the male employees were out in the field.
             They were keeping the lawn mowed, testing the water and
             sewage, sweeping the streets, repairing water line breaks,
             etc. Some more skilled than others, they were all
             performing ‘blue collar,’ labor-type tasks inherent to the
             operation of a borough. [] [Appellants’] duties, on the other
             hand, were strictly administrative. They generated water
             and sewage bills, received and processed payments,
             maintained files, provided information to council members
             and the public, and performed a variety of other secretarial
             duties. All were important and necessary to the efficient
             operation of a municipal corporation, and by all accounts, []
             [Appellants] knew their jobs and did them well.
             Nonetheless, the tasks they undertook were wholly distinct
             from those undertaken by the male employees, which
             means they cannot establish a claim for gender-based wage
             discrimination by referencing the disparity between their
             raises and those approved for [] Arnold, [] Frantz, []
             Yamrick, and [] Dixon. As the [C]ourt said in Nagle, ‘A
             plaintiff’s discrimination claim ‘fails where she compares
             [her] treatment to another employee but cannot show that
             the other employee was similarly situated.’’ Id (quoting
             Caesar v. Lamar Univ., 147 F. Supp. 2d 547, 552 (E.D.
             Tex. 2001)). Because that is what [Appellants] have done
             in this case, therefore, they have failed to establish a prima
             facie case on these claims.

Appellants’ Br. App. A at 3-4 (record citation omitted). This Court discerns no error
in the trial court’s rationale or legal conclusion. Accordingly, the trial court did not
err by requiring Appellants to prove that similarly situated male employees were
treated more favorably, and concluding that Appellants failed to establish a prima
facie case of discrimination.
             Appellants next argue that the trial court erred by requiring Appellants to
show that a majority of the Borough’s Council was aware of Appellants’ protected
activity, i.e., Appellants’ complaint (to Mahlon and Kundrich himself), that Kundrich
was touching their backs and arms, and determining that Appellants failed to
establish a prima facie case of retaliation. Appellants contend that, because Kundrich
                                           7
was a Council member and a member of the personnel committee, he had significant
influence and/or participated in the adverse employment actions decision, i.e., lower
raises, change in job titles and hostile work environment. The Borough rejoins that,
although Mahlon testified that she told one of the Council members about Kundrich’s
touching, there is no evidence that one vote was influenced by her statement or that
this Council member influenced other Council members.           Further, the Borough
maintains that Appellants’ complaint to Mahlon occurred five months before the vote
on the raises and there is no evidence of any negative animus by Kundrich or any
other Council member.
            Initially,

            [a] prima facie case of retaliation requires a complainant to
            show that: (i) she was engaged in a protected activity; (ii)
            her employer was aware of the protected activity; (iii)
            subsequent to participation in the protected activity
            complainant was subjected to an adverse employment
            action; and (iv) there is a causal connection between
            participation in the protected activity and the adverse
            employment action. Upon showing a prima facie case, the
            burden shifts to the employer to articulate a legitimate, non-
            discriminatory reason for its action. See McDonnell
            Douglas[.] [] Finally, the burden shifts to the complainant
            to show that the respondent’s proffered reasons are
            pretextual. Id.

Spanish Council, 879 A.2d at 399 (citation omitted).
            Appellants contend that the protected activity consisted of: (1) telling
Council member Mahlon in July 2015 that Kundrich was touching their arms and
backs; and (2) telling Kundrich to refrain from touching their arms and backs.
Appellants assert that the Borough was aware that Appellants complained because
Kundrich and Mahlon were Council members and Mahlon allegedly told other
Council members. Thereafter, Appellants received lower raises, their employment
positions changed and their positions were eliminated. Because Kundrich was a

                                          8
Council member and a member of the personnel committee, Appellants maintain
there was a causal connection between their complaints and the adverse employment
actions.

             To obtain summary judgment, the employer must show that
             the trier of fact could not conclude, as a matter of law, (1)
             that retaliatory animus played a role in the employer’s
             decision[-]making process and (2) that it had a
             determinative effect on the outcome of that process. This
             may be accomplished by establishing the plaintiff’s
             inability to raise a genuine issue of material fact as to either:
             (1) one or more elements of the plaintiff’s prima facie case
             or, (2) if the employer offers a legitimate non-retaliatory
             reason for the adverse employment action, whether the
             employer’s proffered explanation was a pretext for
             retaliation.

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997) (italics added)
(citation omitted).
             Here, the trial court determined that Appellants did not make a prima
facie showing that the Borough was aware of the protected activity, expounding:

             In this case, [Appellants] allege that the adverse action was
             three-fold: first, that they received lesser pay raises than
             other employees; second, that the Borough changed their
             employment positions; and third, that it moved to eliminate
             their positions. Because [Appellants] have failed to
             establish that the Borough was aware of the protected
             activity - their complaints about [Kundrich] touching them -
             -, however, the Borough cannot be held liable under the
             PHRA for any of those alleged actions.
             Like its municipal counterparts, the Borough is governed by
             a multi-member council, and only by a majority vote can
             compensation be altered or job positions be changed or
             added. Because Council consisted of six members during
             the relevant timeframe, therefore, [Appellants] needed to
             establish that at least four of them knew about their
             complaints against Kundrich during the relevant
             timeframe. They did not.


                                            9
As [Appellants] testified, July 30, 2015 was the first and
only time that year they spoke to a Council member
[Mahlon] -- about Kundrich touching them, and neither
could say whether Mahlon had discussed the matter with
other members of Council.
Mahlon, though, remembered telling Mark Matusky
[(Matusky)], whom she recalled was Council president at
the time, and thought she had also mentioned it to []
Kosko. She further remembered bringing it to the
attention of the entire Council at an executive session
and being told that it would be handled by the president.
With regard to [] Matusky and Council as a whole,
however, the record shows that she was mistaken.
Mahlon learned of [Appellants’] allegations on July 30,
2015 and resigned before the next Council meeting.
Accordingly, she did not attend any meetings after July 20,
2015, and thus could not have apprised Council of a
complaint she did not receive until 10 days after the last
meeting she attended. While Mahlon may have shared
[Appellants’] concerns with [] Matusky, moreover, the
proffered meeting minutes, which [Appellants] transcribed
reflect that he was not a member of Council in July or
August of 2015. In the subject [Summary Judgment]
Motion and [Answer], moreover, the parties agree that
Kundrich was appointed to replace Matusky. The record
plainly demonstrates, therefore, that Mahlon could not have
reported Kundrich’s alleged conduct to the full Council
during an executive session and that [] Matusky was former
Council member as of July 30, 2015.
At best, then, [Appellants] have established that one
Council member other than Mahlon knew about their
complaint. They were not personally aware whether
anyone else knew, and among those who were asked
during depositions, every Council member testified that
he or she only learned about the Kundrich matter in
February of 2016. [Appellants] offered no evidence to
support a contrary conclusion, and because the
inferences to which they may be entitled must be
reasonable extrapolations from the actual evidence, that
means they are not entitled to a contrary inference. That
being the case, and whereas the Borough could not
determine raises, change [Appellants’] terms of

                            10
             employment, or eliminate their positions without the
             consent of four Council members, they have failed to
             establish that the Borough was aware of their complaints
             about Kundrich when it took the allegedly adverse actions
             against them.

Appellants’ Br. App. A at 4-5 (bold emphasis added) (record citations and footnotes
omitted).
             The trial court disregarded Mahlon’s testimony because the record
contained contradictory evidence and because Council members testified during their
depositions that they did not know about the Kundrich complaint until after February
2016.7 However, “[i]t is well established that the credibility of testimony is a matter
for the fact-finder and cannot be resolved at the summary judgment stage. Dep[’t] of
Transp[.] v. UTP Corp., 847 A.2d 801, 806 (Pa. Cmwlth. 2004); see also Nanty-Glo
Borough v. Am[.] Surety Co., 163 A. 523, 524 (Pa. 1932).” Blesse v. Borough of
Coaldale (Pa. Cmwlth. No. 1448 C.D. 2015, filed May 2, 2016), slip op. at 14.8
             Specifically,

             [i]n determining the existence or non-existence of a genuine
             issue of a material fact, courts are bound to adhere to the
             rule of [Nanty-Glo] which holds that a court may not
             summarily enter a judgment where the evidence
             depends upon oral testimony.
                However clear and indisputable may be the proof
                when it depends on oral testimony, it is nevertheless
                the province of the [fact-finder] to decide, under
                instructions from the court, as to the law applicable to
                the facts, and subject to the salutary power of the court
                to award a new trial if [it] should deem the verdict
                contrary to the weight of the evidence.

      7
          Deter complained to Council member Mary Pamela Reiter on February 4, 2016, after
which both Appellants were officially interviewed regarding said complaint.
        8
          Pursuant to Section 414(a) of the Commonwealth Court Internal Operating Procedures,
unreported opinions of a panel of the Commonwealth Court issued after January 15, 2008 may be
cited for persuasive value, but not as binding precedent. 210 Pa. Code § 69.414(a).


                                             11
             Penn [Ctr.] House, In[c]. v. Hoffman, . . . 553 A.2d 900,
             902-03 ([Pa.] 1989). The Nanty-Glo rule means ‘the party
             moving for summary judgment may not rely solely upon
             its own testimonial affidavits or depositions, or those of its
             witnesses, to establish the non-existence of genuine issues
             of material fact.’ Dudley [v. USX Corp., 606 A.2d 916,]
             918 [(Pa. Super. 1992)] . . . . ‘Testimonial affidavits of
             the moving party or his witnesses, not documentary, even
             if uncontradicted, will not afford sufficient basis for the
             entry of summary judgment, since the credibility of the
             testimony is still a matter for the [factfinder].’ Penn [Ctr.]
             House, . . . 553 A.2d at 903.

DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 595 (Pa. Super. 2013) (emphasis added).
             Moreover, although the Borough issued the subject pay raises in
December 2015, the other allegedly adverse actions, i.e., the changes in Appellants’
positions and hostile work environment, continued through March 7, 2016, when
Appellants resigned. Thus, this Court cannot agree with the trial court that it can
disregard Mahlon’s testimony. Viewing her testimony “and reasonable inferences
deduced therefrom in a light most favorable to the non-moving party,” as we must,
this Court is constrained to conclude that there is a genuine issue of fact as to whether
the Borough was aware of Appellants’ complaint to Mahlon about Kundrich and
whether Mahlon reported the same to other Council members. Leibensperger, 152
A.3d at 1073.
             Because the trial court improperly granted the Summary Judgment
Motion on the basis of this element of Appellants’ prima facie case, the matter is
remanded to the trial court to consider whether Appellants failed to “raise a genuine
issue of material fact as to either: (1) one or more [other] elements of [Appellants’]
prima facie case or, (2) if the [Borough] offer[ed] a legitimate non-retaliatory reason
for the alleged adverse employment action, whether the employer’s proffered
explanation was a pretext for retaliation.” Krouse, 126 F.3d at 501.



                                           12
             For all of the above reasons, the trial court’s order is affirmed in part and
reversed in part, and the matter is remanded to the trial court for consideration of
Appellants’ retaliation claim.


                                        ___________________________
                                        ANNE E. COVEY, Judge




                                           13
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mrs. Karen M. Deter, an adult         :
individual; and Mrs. Diane Gresock,   :
an adult individual,                  :
                         Appellants   :
                                      :
                 v.                   :
                                      :
Borough of Sykesville, a Pennsylvania :       No. 500 C.D. 2019
Municipality                          :


                                       ORDER

             AND NOW, this 28th day of February, 2020, the Jefferson County
Common Pleas Court’s (trial court) March 28, 2019 order granting the Borough of
Sykesville’s Motion for Summary Judgment is AFFIRMED as to Karen M. Deter’s
and Diane Gresock’s (collectively, Appellants) discrimination claim and REVERSED
as to Appellants’ retaliation claim. The matter is REMANDED to the trial court for
further consideration consistent with this opinion.
             Jurisdiction is relinquished.


                                        ___________________________
                                        ANNE E. COVEY, Judge
