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MOORE v. GROVE NORTH AMERICA

April 16, 1996

MARY J. MOORE, Plaintiff
v.
GROVE NORTH AMERICA, INC., d/b/a GROVE WORLDWIDE, Defendant



The opinion of the court was delivered by: CALDWELL

 This action arises from Plaintiff's employment with the Defendant, Grove North America, Division of Kidde Industries, Inc. ("Grove"). Plaintiff contends Grove discriminated against her during her employment and with respect to her termination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. We are considering Grove's motion for summary judgment.

 I. BACKGROUND

 Plaintiff was hired by Grove on October 19, 1987 to work in its paint shop and on March 6, 1989 was promoted to supervisor. Thereafter, she was transferred to the Sub-Assembly Building and, in October, 1993, was transferred to what is referred to as the Heavy Equipment Mobile Tactical Truck Building.

 After this transfer Plaintiff's superior was one Larry Keller. Plaintiff alleges that Larry Keller treated her differently than her fellow supervisors, and although she confronted him, he failed to do anything about her concerns and told her "not to go over his head."

 Upon return from a vacation on July 5, 1994, Plaintiff was told by another employee that Keller had made a derogatory comment about her and women in general. Specifically, Larry Keller allegedly stated that "women do not belong in supervision." Plaintiff went to Tom Keller (Larry Keller's brother), who was Grove's Director of Manufacturing and Larry Keller's immediate boss, and requested a meeting with him and Larry.

 At the meeting, Plaintiff informed Tom Keller about: (1) problems that had arisen in Plaintiff's department the previous week; (2) the mistreatment (different from that of the male supervisors) that Plaintiff received from Larry Keller; (3) Larry Keller's alleged statement that "women do not belong in supervision"; and (4) Larry Keller's failure to communicate with her. *fn1" When she concluded, Tom Keller asked her, "What do you want me to do, take out a .44 and shoot him?" Larry Keller, who was laughing, then said "Mary what do you think he's going to do, fire me?" Tom Keller then told Plaintiff, in a hostile tone of voice, that she could "see someone else" about the problems if she wanted to. Thereafter, from July 11, 1994 through July 20, 1994, Plaintiff sought legal advice from the EEOC, the Pennsylvania Human Relations Commission, and a private attorney, who advised her concerning a discrimination claim.

 On July 29, 1994, Plaintiff's husband, Dave Moore, who is also employed by Grove, was demoted. Plaintiff believed the decision was influenced by her meeting with the Kellers on July 7, 1994. On August 1, 1994, Plaintiff went to Tom Keller's office, but was told that he was in a meeting. She initially waited in Keller's office, then decided to interrupt him. Plaintiff apologized for interrupting the meeting, and informed Tom Keller that she had visited an attorney and was going to the "labor board."

 Larry Keller discussed with Hockenberry what Plaintiff said, then informed Plaintiff that she had been placed on disciplinary suspension and must leave the premises. She refused. Thereafter, Hockenberry repeated the order and Plaintiff asked what would happen if she refused. Hockenberry informed her that he would call the police. At this point, Plaintiff told Hockenberry about Larry Keller's alleged derogatory statement, that she had seen a lawyer, and that she had been to the labor board, and she then agreed to leave.

 Hockenberry permitted Plaintiff to retrieve some personal belongings, but instructed her not to speak to anyone. Plaintiff spoke to some employees while on the shop floor but there is a dispute as to what she said.

 Thereafter, Gary Spickler, a Grove Vice-President, met with Hockenberry and directed him to gather and analyze all of the facts associated with the August 1, 1994 incident. Hockenberry called Plaintiff and requested that she attend a meeting with him and another Grove employee. During this meeting, Plaintiff discussed her allegations with respect to Larry Keller, as well as her meeting with the Kellers on July 7, 1994. On August 15, 1994, she was terminated.

 Plaintiff instituted this action on April 20, 1995. Her complaint advances four claims under Title VII: disparate treatment (Count I); hostile work environment (Count II); discriminatory discharge (Count III); and retaliatory discharge (Count IV). *fn2"

 II. LAW AND DISCUSSION

 A. Standard of Review

 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 is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In reviewing the evidence, facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986). Summary judgment must be entered in favor of the moving party "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).

 When a moving party has carried his or her burden under Rule 56, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," and cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (emphasis in original) (citation omitted). However, "if the [nonmoving party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986) (internal citations omitted).

 Plaintiff alleges that she was subjected to unlawful harassment based upon her gender during her employment at Grove. The Supreme Court first recognized the availability of a "hostile work environment" claim under Title VII in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), where it stated that "for sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. at 67, 106 S. Ct. at 2405, 91 L. Ed. 2d at 60 (citation omitted) (alteration in original). To establish a hostile work environment claim, a plaintiff must demonstrate that (1) she suffered unwanted, intentional discrimination because of her gender; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable person of the same gender in that position; and (5) respondeat superior liability existed. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). "In determining if a work environment is 'hostile' or 'abusive', courts look to the totality of the circumstances, including: the frequency and severity of the conduct; whether the conduct is physically threatening or humiliating, or merely an offensive utterance; and whether the conduct unreasonably interferes with the victim's work performance." Pittman v. Correctional Healthcare Solutions, Inc., 868 F. Supp. 105, 108 (E.D.Pa. 1994) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, , 114 S. Ct. 367, 371, 126 L. Ed. 2d 295, 302 (1993)). We need only examine the first element of the Andrews test.

 In her brief, Plaintiff states that "her Declaration sets forth a panoply of discriminatory behavior by Larry Keller, which a reasonable jury could conclude was animated by hostility to Mrs. Moore because she was a woman supervisor." [Pl.'s Br. in Opp'n to S.J. at 7]. She does not, however, specifically identify any alleged misbehavior that could permit a finding that she was subjected to discrimination because of her gender.3 Although we will not address the surfeit of allegations set forth in Plaintiff's declaration, we will discuss some of her complaints.

 Plaintiff contends that Larry Keller did not like her working for him, would not listen to her, and made her feel like she was "bothering him" when she spoke to him. [Pl.'s Decl. at P 44]. In contrast, she asserts that in her opinion he did not act that way to the male employees and would "kid around them, talk to them, and have frank exchanges." [Id.] In addition, she contends that Keller was "contemptuous" with her, ...


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