As a sexual harassment lawsuit against him trundles through federal court proceedings, Schuylkill County Commissioner George F. Halcovage Jr. and other defendants are asking the judge to dismiss several of the accusations contained in an amended complaint filed some months after the lawsuit.

The amended complaint alleges intentional infliction of emotional distress (against Halcovage only); discrimination; retaliation based on PHRA; and violation of their equal protection rights due to disparate treatment and hostile work environment.

In documents filed Monday in U.S. District Court, Scranton, their lawyers ask Magistrate Judge Martin C. Carlson to dismiss accusations of discrimination on the basis of sex and retaliation taken against the four women who work in the courthouse who filed the lawsuit.

The retaliation, the women contend, included demotions, pay cuts, and in the case of two of them, being accused of performing unauthorized searched using sophisticated county software that officials claim exposed the private information of hundreds of people. After an attempt to fire them failed in September 2021, the two women were suspended without pay while the county hired a firm to conduct an investigation into the alleged transgressions.

The results of that study, which have never been made public, led to a second failed attempt at firing them in March 2022.

The women continue to be suspended without pay.

In addition to Halcovage, those county employees asking for the dismissal are County Administrator Gary R. Bender, former Human Resources Director Heidi L. Zula, interim Human Resources Director Doreen M. Kutzler, and First Assistant County Solicitor / Risk Manager Glenn T. Roth Jr.

The defendants dispute that the actions county officials took were retaliatory, contending that they were based upon “legitimate, nondiscriminatory reasons.” The amended complaint alleges intentional, infliction of emotional distress; discrimination; retaliation based on PHRA; equal protection (disparate treatment and hostile work environment.

‘Emotional distress’

Halcovage, in his request for dismissal, contends that the two women cannot state a cause of action against him for infliction of emotional distress because they “cannot produce evidence of conduct by Halcovage that is so outrageous in character, and so extreme in degree has to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.”

Intentional infliction of emotional distress, under Pennsylvania common law is “reserved by the courts for only the most clearly desperate and ultra extreme conduct.”

Those must prove the existence of alleged emotional stress by competent medical evidence; that is expert medical confirmation that plaintiffs actually suffered the claimed distress, and it was caused by Halcovage’s outrageous acts. The medical evidence does not meet that standard. As far as the retaliation goes, Halcovage states he either made none of these decisions or acted as one of three votes on the board of commissioners.

As an individual county commissioner, Halcovage states, he had no legal authority to modify the terms of the women’s employment without the approval of at least one other commissioner.

Halcovage also contends he has “absolute legislative immunity from the lawsuit.”

As to the equal protection complaint, he states that they “cannot factually prove that they suffered adverse employment actions as result of their gender.”

“Even if they could, any adverse action that could have been taken by Halcovage was as a county commissioner for which there is no individual liability,” the suit states.

County employees

Zula‘s request notes that “she did not begin working at the county until long after the initial report and left her role before much of the subsequent complaint of behavior.

She served as interim Human Resources director from Jan. 11, 2021, until the beginning of June 2022.

Kutzler states that the plaintiffs have failed to establish sufficient facts to establish liability against her.

As the county administrator, Bender argues, he does not have the authority to hire, fire, or promote county employees. He cannot create job positions or set salaries, and so could not take the alleged actions against the women. He also contends he was unaware of Halcovage’s alleged actions before a Human Resources investigation in June 2020.

Roth’s request for dismissal states that he has qualified immunity from the claims.

“Qualified immunity profess government officials from liability for civil damages, and so far is their conduct does not violate clearly, established, statutory or constitutional rights of which a reasonable person would have known.”

For a right to be clearly established, “there must be sufficient president at the time of action, factually similar to the plaintiffs allegations, to put the defendant on notice that his or her conduct is constitutionally prohibited.”

Roth contends that he did not violate any of the four plaintiffs’ Constitutional rights. He also did not have personal involvement in the alleged harassment; he “did not treat any of the four Jane does differently from their similarly situated male colleagues, and he did not (and could not) alter any of the terms or conditions of their employment.”

The workers, all women, filed their federal sexual harassment suit on March 16, 2021, alleging that Halcovage began behaving inappropriately toward them when he first took office in 2012.

They filed the amended suit in October 2021, contending that the defendants discriminated against them and retaliated against them for filing the initial suit.

The sexual harassment accusations against Halcovage surfaced in 2020, when the county Human Resources Department determined that he had violated the sexual harassment, conduct and disciplinary action, and physical and verbal abuse policies.

Those violations would have resulted in Halcovage being fired had he been an employee instead of an elected official, according to the department’s findings.

As a result of the report, the county imposed restrictions on Halcovage to curtail his contact with the women.