directed Plaintiff to go to his office and not to leave. Plaintiff refused, and returned to her work station. Soon after, Larry Keller and John Hartman, another building manager, approached Plaintiff. Larry Keller instructed Plaintiff to accompany him to the office of Roger Hockenberry, Grove's Director of Human Resources. Plaintiff refused, stating that she would speak with human resources personnel if they came to her area.
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).
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).
B. Hostile Work Environment (Count II)
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, called her a "child", and made her feel as though she did not know what she was talking about. [ Id. at 45-46].
While we agree that these allegations, If true, may make: for an unpleasant work environment, there is nothing in the record to suggest that Keller's actions were motivated because of Plaintiff's gender. "If the nature of an employee's environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination as a result of that environment." Gross v. Burggraf Const. Co., 53 F.3d 1531, 1537 (10th Cir. 1995) (emphasis in original) (citing Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 538 (10th Cir. 1994)); see also Miller v. Aluminum Co. of America, 679 F. Supp. 495, 502 (W.D.Pa.) ("Snubs and unjust criticisms are not poisonous enough to create an actionable hostile working environment. . . . Hostile behavior that does not bespeak an unlawful motive cannot support a hostile work environment claim"), aff'd, 856 F.2d 184 (3d Cir. 1988). Here, the fact that Keller may have disliked Plaintiff or treated her poorly cannot, without more, amount to gender based harassment.
Plaintiff also complains that Larry Keller used an offensive four letter word to and in front of her, even after she informed him that she did not curse and asked him to stop. Again, the fact that Larry Keller cursed at the Plaintiff is not evidence that he harassed her because of her sex. In fact, the record is replete with testimony that Larry Keller swore at male supervisors, [Pl.'s Decl. at P 47], and contains nothing to support a finding that Plaintiff was targeted because she was a female.
To be actionable, harassment must be such that it "would not occur but for the sex of the employee. . . ." Gross, 53 F.3d at 1537 (citation omitted).
Insofar as Plaintiff contends that the offensive language itself amounted to harassment, that argument must also be rejected. In Baskerville v. Culligan Intern. Co., 50 F.3d 428 (7th Cir. 1995), the court stated that
the concept of sexual harassment is designed to protect working women from the kind of male attentions that can make the workplace hellish for women. . . . It is not designed to purge the workplace of vulgarity. Drawing the line is not always easy. On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.
Id. at 430-31 (internal citations omitted); see also Weinsheimer v. Rockwell Intern. Corp., 754 F. Supp. 1559, 1565 (M.D.Fla. 1990) ("Rockwell's back shop had two marked characteristics, those of frequent contentiousness and vulgarity. The simple combination of these two traits should not, without more, equal a Title VII violation"), aff'd, 949 F.2d 1162 (11th Cir. 1991). Here, there is no dispute that vulgar language was used at Grove. Although Larry Keller used an unsavory four letter word, he did not make sexual innuendos or use gender-related language toward Plaintiff or women in general. See Andrews, 895 F.2d at 1485; Shaw v. Mellon Bank, N.A., 1995 U.S. App. LEXIS 2099, No. 94-1765, 1995 WL 770415, *4 (W.D.Pa. Oct. 13, 1995); cf. Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1010 (7th Cir. 1994) (plaintiff herself was the target of "deeply offensive and sexually harassing" conduct and statements); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463-64 (9th Cir. 1994), cert. denied, U.S. , 115 S. Ct. 733, 130 L. Ed. 2d 636 (1995). Plaintiff has not cited, nor has our research disclosed, a single case in which a court held that a plaintiff had established a hostile work environment where a supervisor simply used inappropriate language in front of male and female employees.
The remaining allegations in Plaintiff's declaration also could not support a finding that she was subjected to harassment based on her gender.
Grove is entitled to summary judgment on Count II of the complaint.
C. Pretext (Counts I and III)
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court established the basic framework and burdens of proof in Title VII pretext actions.
First, the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. Id. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677. A prima facie case arises by showing that: (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for the position; (3) plaintiff was discharged from or denied the position; and (4) nonmembers of the protected class were treated more favorably. Id.; St. Mary's Honor Center v. Hicks, 509 U.S. 502, , 113 S. Ct. 2742, 2746-47, 125 L. Ed. 2d 407, 415-16 (1993). However, the prima facie case is not rigid and should be adjusted to comport to the claims advanced and facts presented. Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990) (citation omitted).
If the plaintiff succeeds in proving a prima facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for its actions. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). If the defendant carries its "relatively light burden by articulating a legitimate reason for the unfavorable employment decision, the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation is pretextual (thus meeting the plaintiff's burden of persuasion)." Id. (parenthetical in original). In order to establish pretext, and survive summary judgment,
the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.