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January 20, 1995

BLAIR, INC., Defendant

The opinion of the court was delivered by: MCLAUGHLIN



 Plaintiff Suntok Waite has filed a multi-count Complaint against Defendant Blair, Inc. ("Blair") alleging, inter alia, that Blair discriminated against her on the basis of her race and national origin in violation of the Civil Rights Act of 1964, Title VII, 42 U.S.C. ยง 2000(e), as amended, by subjecting her to a hostile work environment and by retaliating against her for activity protected under Title VII. Plaintiff also asserts a claim under the Americans with Disabilities Act of 1990, as well as several state law claims including alleged violation of the Pennsylvania Human Relations Act, wrongful discharge, and intentional infliction of emotional distress. *fn1" Presently before the Court is Defendant's Motion for Summary Judgment on all of the foregoing counts. For the reasons discussed below, Defendant's motion is granted.


 In her brief opposing Defendant's motion for summary judgment, Plaintiff describes a litany of alleged harassment by Blair's employees and supervisory personnel which she claims were the product of ethnic, racial, and disability-related discrimination. Waite also claims that these incidents constitute extreme and outrageous conduct giving rise to her emotional distress claim. Because of the extensiveness of Plaintiff's allegations, the Court sets forth the relevant background in some detail.

 Plaintiff is a native of Korea and has lived in the United States since November 28, 1965. (Deposition of Suntok Waite 5:2-25.) In September of 1979 she was hired by Blair as an inspector and remained in that position until her last day of work on October 1, 1992. (Id. at 10:10-15; 16:6-10; Complaint PP 7, 48.) Plaintiff was terminated by Blair on April 8, 1993 when she failed to return to work upon the expiration of her six-month disability leave period. (Complaint P 49.)

 Plaintiff maintains that she suffered a history of mistreatment while employed at Blair, particularly during the years 1987-1992. She claims, for example, that her assistant supervisor, Donald Rudolph, addressed her on many occasions stating "Yes, ma'am; no, ma'am," in a sarcastic tone. (Waite Deposition at 23:23-25; 24:3-9; 42:11-43:2.) Waite testified at deposition that, "He [Rudolph] bother me. Too much yes, ma'am, no ma'am. Too much. It both me. Really bother me." (Id. at 43:20-22.) On April 4, 1992, Rudolph addressed Plaintiff with the words "Yes sir" and "No sir," and commented to the effect that, with Plaintiff's short hair, it was difficult to distinguish her from a man. (Id. at 43:3-44:13.) Plaintiff had other complaints concerning Rudolph, including the objection that "sometimes he says you, Mrs. Waite, good morning." (Id. at 24:22-23.)

 On more than one occasion, Plaintiff met with John Carter, head of merchandise, and complained that Rudolph was saying "yes and no ma'am" to her constantly in a sarcastic manner, not in a manner of respect. (Id. at 44:14-46:20; 47:9-48:6.) During one such meeting, Plaintiff referred to some of her own handwritten notes (in Korean writing) concerning various incidents that she wished to discuss with Mr. Carter. Plaintiff apparently took offense to the fact that another co-worker who was present at the meeting, upon examining Plaintiff's notes, referred to the writing as "chicken scratch." (Id. at 46:13-47:4.) Plaintiff acknowledges that Carter agreed to talk to Plaintiff's co-workers about the complained-of conduct, but she claims that the insults did not stop. (Id. at 48: 6-9.)

 Waite also complains that her immediate supervisor, Jini McDunn, "yelled" at her on occasion. (Id. at 17:10-15.) For example, Plaintiff complains that on September 22, 1989 McDunn "yelled at her" for fighting with another employee and pushed a steel table in front of her, even though Plaintiff had done nothing but simply enter her work station. (Id. at 17:20-19:7.)

 There were other complaints of co-workers yelling at Plaintiff, including Sue Arnold, who allegedly "yelled" at Waite in front of other people regarding the manner in which Waite had completed a company work report. (Id. at 63:24-65:14.) Plaintiff claims that McDunn confronted her following the yelling episode with Arnold, at which time McDunn kicked a box and told Plaintiff to go back to work, without listening to Plaintiff's side of the story or explaining what the problem was with her report. (Id. at 67:1-71:6.) The following day, Plaintiff apparently talked to two other employees in an attempt to discern what mistake she had made on the report and how to complete the form correctly. Plaintiff claims that McDunn entered the room during this conversation, looked at her report from the previous day, and embarrassed Plaintiff by screaming in a loud voice, "You're still doing it, this thing." (Id. at 72:12-75:10.)

 Another incident concerned a memo which was circulated through Plaintiff's work area on or around April 3, 1992. Because Plaintiff was unable to read the memo, she asked Sue Arnold what it was about. According to Plaintiff, Rudolph heard the request and responded, "You don't read...You don't understand." Arnold also allegedly commented on the fact that Plaintiff had been in the United States for twenty-eight years and still didn't understand English. Rudolph and Arnold then allegedly laughed about Plaintiff's inability to read or understand English. (Id. at 75:15-77:18; 79:2-9; 80:3-9.) Plaintiff contends that, on at least one other occasion thereafter, Arnold remarked on Plaintiff's inability to read, write or speak English after several years in the United States. (Id. at 87:5-11; 88:22-89:9; 95:8-96:3.)

 Plaintiff also complains that on April 13, 1992 when she was off work, she received an anonymous telephone call but believed that in the background she could hear noise typical or the sounds at work. (Id. at 82:17-84:6.) Plaintiff maintains that the following day she mentioned the incident to a co-worker who made the comment that "Rudy didn't call." When Plaintiff confronted the co-worker and pressed for information as to whether anyone from Blair had made the call, the co-worker allegedly blushed and "didn't know what to say." (Id. at 84:7-87:1.)

 On May 14, 1992, Plaintiff was called to a meeting by Randy Scalise who was going to set her up for a "Right-to-Know" training at which time she would be provided with an interpreter. Plaintiff indicated that it was not necessary for her to have the training since she did not use any chemicals in her work area. (Id. at 106:18-108:20.) Plaintiff further indicated that she did not think it wise to bring someone in from the outside, since she knew the person who was going to act as an interpreter and would feel embarrassed. (Id. at 108:19-110:11; 117:3-9.) As a result, Mr. Scalise had Mrs. Waite sign a statement indicating that she did not want the training, and the statement was witnessed by two other individuals. (Id. 112:9-115:3; 116:15-117:2.) Plaintiff claims she sought out Dorothy Dutcher, who was present during the meeting, because Plaintiff was upset by the incident and wanted to talk to Ms. Dutcher about it privately. While the two were conversing in the storage room, McDunn allegedly entered the room hollering at Plaintiff and calling her a troublemaker. (Id. at 118:16-120:20.)

 Plaintiff also complains that in May, 1992 McDunn would not say good morning or good night to her, although he would greet other employees. (Id. at 121:5-122:9.) On May 21, 1992 when Plaintiff greeted NcDunn by saying, "Good morning, Jim," he allegedly turned around and would not respond to her. (Id. at 122:2-7.)

 On May 27, 1992, Plaintiff was asked by Norbert Preshak, a co-worker, who had hardly spoken to her for approximately eight months, "How long are you going to be here?" and "Are you going to give up here?" (Id. at 122:13-123:1.) Plaintiff testified at her deposition that she did not know what caused Mr. Preshak to make these remarks. (Id. at 123:18-23.) On another occasion, Mr. Preshak offered to assist Plaintiff with her work, but was allegedly instructed by McDunn not to help Plaintiff. (Id. at 126:5-127:1.)

 Plaintiff also took offense at the fact that, when she brought earrings into work for some of the people, the co-workers refused to take them. (Id. at 104:1-105:10.) That same day, one of Plaintiff's fellow employees apparently relocated her table in such a manner that she would not have to face Plaintiff or be near her while working. (Id. at 105:12-106:17.)

 Between 1989 and 1992 Plaintiff had several meetings with Richard Zimmerman, Vice President of Personnel, in which she allegedly complained to him of her work environment. (Id. at 25:11-18; 26:6-17.) Plaintiff claims that Zimmerman "yelled" at her during one of these meetings and informed Plaintiff that the people at Blair did not like working with her and were afraid of her. (Id. at 28:1-25; 29:1-3.) Because of Waite's apparent difficulty with her co-workers, Zimmerman offered on several occasions to transfer Plaintiff to a different department at Blair, but Plaintiff refused the offers. (Id. at 30:20-33:6; 34:15-21; 37:2-4; 37:16-38:2.)

 Plaintiff claims that, in spite of her meetings with Zimmerman and her complaints about the treatment she was receiving, the harassment continued. For example, on June 15, 1992, McDunn returned to work after having taken a trip to Central America. (Id. at 131:23-132:1.) When Waite asked hit about the trip, McDunn allegedly responded "It was better than Korea," to which Plaintiff replied, "I hope so." (Id. at 132:2-23. )

 Plaintiff further claims that, on June 23, 1992, during a work break, one of her co-workers stated in a loud voice and in the presence of several people, "You know in this country the middle class has had a pretty good life and it is being taken away from us by little people in other countries sending all kinds of things here." (Id. at 134:1-9.) Plaintiff could not recall at deposition whether or not she reported this incident to management personnel. (Id. at 135:4-7, 12-15.)

 On another occasion in 1992, Plaintiff was waiting to get a box in her tow cart to take back to her work area. Mr. Rudolph was loading carts for two other female employees, but allegedly ignored Mrs. Waite and would not assist her. Plaintiff claims that, as Rudolph walked away, she said, "Rudy, me too." In response to this request, Rudolph allegedly threw a box on Plaintiff's cart and angrily walked away. (Id. at 50:2-52:9.)

 Plaintiff also complains of two other incidents of anonymous harassment. Mrs. Waite maintains that on June 3, 1992, she noticed that a plastic cup that she had made to dispense inspection tickets had been cut with a sharp object so that it could not be utilized. (Id. at 127:3-128:5.) In addition, on June 11, 1992, Plaintiff allegedly returned to work and found the items on her desk strewn about in a disorderly fashion. (Id. at 130:21-131:9.)

 The final straw apparently came on September 24, 1992, when Waite received an annual employee performance report rating her performance in various categories such as quantity and quality of work, job knowledge, initiative and dependability. Overwhelmingly, Plaintiff was rated above average to superior, the sole exceptions being an average rating for "quality of work" and a written comment to the effect that Plaintiff lacked confidence in her co-workers and could improve her performance by showing them more consideration. *fn2" (See Defendant's Motion for Summary Judgment, Ex. G.) Nevertheless, Plaintiff took offense to the review and refused to sign the employee performance report. (Waite Deposition at 141:1-142:25; 144:8-10.) According to Waite, she asked McDunn why her evaluation was so low and he responded that "he could not give her any more than that." (Plaintiff's Br. in Opp. at 13-14; Waite Deposition at 141:2-5.) When Plaintiff asked what was wrong, McDunn remarked that it was her personality. (Waite Deposition at 141:6-15.)

 Despite her essentially favorable review, Plaintiff became quite upset over the evaluation. She explained her mental state the day after the evaluation as follows:

I work. I so miserable. What I -- this my feel. Just my feeling. Why my evaluation so low? I'm a top inspector. Quantity higher than anybody else. How come she give me this kind of thing? ... That day I don't know what time I working, how long I working. Everybody finish; I'm still working. Somebody shut off the lights. I get up and walk away. Then I come home. (Id. at 147: 3-12.)

 After receiving her evaluation, Waite worked for Blair one more day, October 1, 1992. Waite claims that, as a result of her doctor's request, she was unable to return to work on October 2, 1992. She maintains that her inability to work was related to continuing harassment as well as chronic arm and shoulder injury. *fn3" (Complaint P 48; Waite Deposition at 149:23-150:7.)

 Because of the stresses related to her work environment, Plaintiff eventually sought treatment. In June of 1992, Plaintiff had spoken with John Carter about her work situation. (Waite Deposition at 160:16-161:7.) At that time, Mr. Carter expressed concern for Waite's well-being and suggested that she receive psychiatric treatment so that she could talk to someone about her problems. Plaintiff was referred to John Addis, Ph.D, a psychologist. (Waite Depo. at 160:16-161:7, 162:9-164:9; Ex. 7 to Waite Deposition; Plaintiff's Br. in Opp. at 14.)

 In July of 1992, Plaintiff began treating with Dr. Addis, whom she saw on four occasions. After her initial appointment, Dr. Addis made a tentative finding that Plaintiff was suffering from agitated depression due to job stress. (Addis Deposition at 9:19-21; 11:4-8.) Dr. Addis eventually concluded that Plaintiff's job setting was responsible for her depressed condition and he opined that, although she would not be able to return to work for the present time, "as time goes on through proper debriefing and work support by a company, I think there is a fair to good prognosis that some day she might be able to return to work." (Id. at 26:5-9; 26:19-27:6.)

 In October of 1992, Dr. Addis referred Plaintiff to Dr. Allen Summers, a psychiatrist, who treated Plaintiff until approximately October of 1993. (Waite Deposition at 14:1-4; Deposition of Dr. Summers at 6:17-22.) At deposition, Dr. Summers observed that Plaintiff was extremely sensitive to criticism and that she found it very difficult to deal with individuals in a position of authority. *fn4"

 On April 8, 1993, after Plaintiff exceeded the time period allotted to all employees who are continuously absent in excess of six months, Defendant terminated her. (Complaint P 49; Defendant's Br. in. Support of Motion for Summary Judgment, at 2.) Plaintiff does not dispute the fact that the termination was in accordance with the provisions of the Blair employee Handbook. (Exhibit D to Luksch Affidavit.) *fn5" Following her termination, Plaintiff filed the present action.

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party in entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Once the moving party has satisfied its burden of identifying evidence which demonstrates the absence of a genuine issue of material fact, the non-moving party must demonstrate by affidavits and other materials the existence of specific material facts which give rise to a genuine issue. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987); Shultz v. Barko Hydraulics, Inc., 832 F. Supp. 142 (W.D. Pa. 1993).

 In order to defeat a motion for summary judgment, the non-movant may not rest upon bear assertions, conclusory allegations or mere suspicion, but must set forth specific facts showing that there is a genuine issue for trial. Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981); Barcelona v. Fox Grocery Co. Employees' Pension Plan, 483 F. Supp. 1128, 1134 (W.D. Pa. 1980). An issue of material fact is considered "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, "where the record taken as a whole could not lead a rational trier of fact to find for the ...

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