Female guardâ??s suit will move forward

SCRANTON – A federal judge has denied a motion to dismiss a gender discrimination lawsuit filed against the Luzerne County prison by a female guard.

Sarah Kosek of Forty Fort filed suit last year, alleging she was passed over for a position as a corrections counselor in favor of a male prison employee she claims was less qualified.

Kosek applied for the position in July 2009, but the job was given instead to Robert Herto. Kosek filed a union grievance over the issue and was later appointed to the post and given back pay and benefits.

Attorneys for the county sought to dismiss the suit, arguing the prison had legitimate, non-discriminatory reasons for choosing Herto. Regardless, the county argued Kosek had not suffered any adverse action because she eventually prevailed in getting the position.

Kosek's attorney, Kimberly Borland, argued Kosek was not appointed to the position until after she filed suit. That constituted an adverse action, he said, because she was forced to retain an attorney in order to protect her rights.

In addition, Borland noted Kosek, by law, is entitled to recoup damages in addition to the back pay should it be determined she was subjected to discrimination.

U.S. District Judge Richard P. Conaboy agreed.

In his ruling, Conaboy said the evidence showed that, at the time Kosek filed the suit, she had not yet been appointed to the position. Although she did obtain some relief after the suit was filed, she is entitled to seek additional damages beyond the back pay she was awarded.

The defendants . . . have not presented any authority which supports the proposition that a post-filing change of status which serves to satisfy some damages sought by the plaintiff moots the relevant claim where other damages allowed by statute remain available, Conaboy said.