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MAHER v. ASSOCIATED SERVS. FOR THE BLIND

May 28, 1996

TERESA MAHER, Plaintiff,
v.
ASSOCIATED SERVICES FOR THE BLIND, Defendant.



The opinion of the court was delivered by: JOYNER

 Joyner, J.

 May 28, 1996

 I

 This Memorandum and Order resolves the motion for summary judgment filed by Defendant Associated Services for the Blind ("ASB") in this employment discrimination action brought by Teresa Maher, a Pennsylvania citizen and former ASB employee. The thrust of Ms. Maher's complaint is that ASB subjected her to pervasive gender-based harassment so severe as to create an abusive and hostile work environment. Ms. Maher seeks damages under the following four theories of liability: (1) hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e--2000e-17 (1994); (2) constructive discharge under Title VII; (3) intentional infliction of emotional distress under Pennsylvania law; and (4) negligent retention and supervision under Pennsylvania law.

 In the instant motion for summary judgment, ASB argues that Ms. Maher has failed to raise a genuine issue of material fact in support of any of the claims contained in her complaint. A district court is authorized to award summary judgment "if the pleadings, depositions 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 judgment as a matter of law." Fed. R. Civ. P. 56(c). In order to survive a summary judgment motion, the non-moving party must raise "more than a mere scintilla of evidence in its favor" and may not merely rely on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Boiled to its essence, the summary judgment standard requires the non-moving party to create a "sufficient disagreement to require submission [of the evidence] to a jury." Liberty Lobby, 477 U.S. at 251-52.

 II

 ASB is a not-for-profit Pennsylvania corporation that provides services to blind and visually impaired persons in the Philadelphia area. In 1991, ASB hired Ms. Maher and assigned her to a sales clerk position in SenseSations, a store specializing in goods that aid the blind. When she began working at the store, she received a copy of ASB's personnel regulations and was aware that ASB's policy was to prohibit sexual harassment. The assistant manager at SenseSations was William Ankenbrant, a man suffering from total blindness. Ms. Maher alleges that Mr. Ankenbrant sexually harassed her repeatedly over the course of her tenure with ASB. For example, on Ms. Maher's first day of work, Mr. Ankenbrant hugged her and ran his hands up and down her back, remarking that "there were people ahead of you that just didn't work out, but I can tell that you are."

 Although Ms. Maher informed him that she did not approve of his conduct and instructed him to desist, Mr. Ankenbrant continued to engage in this sort of behavior at various times during 1991, 1992 and 1993. Ms. Maher states that Mr. Ankenbrant hugged her on approximately seven to ten occasions during this time; that he kissed her on her forehead, ears and lips; and that on one occasion, he slid his hand underneath her shirt, touching her back for approximately thirty seconds. Mr. Ankenbrant also engaged in conversation that Ms. Maher considered inappropriate. For example, when Ms. Maher used the bathroom, Mr. Ankenbrant mentioned that he wished he were the "tidy bowl man." Moreover, Mr. Ankenbrant would frequently use the term "bite me" in Ms. Maher's presence, a phrase she interpreted as a reference to oral sexual intercourse. Mr. Ankenbrant continued to use this term in Ms. Maher's presence, despite her repeated requests that he refrain from doing so. She alleges that on one occasion, Mr. Ankenbrant used the term "bite me" in the presence of Ms. Maher and their mutual supervisor, John Corrigan, who took no immediate corrective action.

 Ms. Maher first complained to the ASB administration in April 1993, notifying its Associate Executive Director, Lynn Dellinger, of Mr. Ankenbrant's frequent use of the phrase "bite me." She also brought to management's attention sexually suggestive comments Mr. Ankenbrant made after he accidently bumped into Ms. Maher, such as "that was nice, can we do that again?" and "did that turn you on?" Ms. Maher also complained as to Mr. Ankenbrant's behavior generally:

 
I had also talked with [Ms. Dellinger] about how he upstages me, the problem with his temper, he spends a lot of time in the basement, you know, when he's supposed to be upstairs. He is smothering. He doesn't give me any privacy. . . . He doesn't take no for answer, and . . . he belittles me.

 Maher Dep. at 107. Ms. Maher did not inform Ms. Dellinger as to the seven to ten hugging and kissing incidents that had occurred over the previous two years.

 In response to these complaints, Ms. Dellinger addressed a memorandum to Mr. Ankenbrant that described his comments as "inappropriate and offensive." Moreover, Ms. Dellinger notified him that "sexual harassment of any kind is prohibited at [ASB]" and that a future violation of the company's policy regarding sexual harassment would subject him "to immediate discharge." Mr. Ankenbrant addressed a letter to management on May 4, in which he denied the accusations. On May 6, Mr. Corrigan, who had overheard the "bite me" comments, stated that he did not consider them to be of a sexual nature. As a result of Mr. Corrigan's statement, Ms. Dellinger addressed a revised memorandum to Mr. Ankenbrant on May 7, in which she informed him that in light of Mr. Corrigan's statement, no immediate action would be taken against him. However, Ms. Dellinger reiterated ASB's view that "sexual harassment is a serious offense" and that "an employee can be terminated without any warning whenever sexual harassment occurs." At Mr. Ankenbrant's request, all materials relating to the sexual harassment issue were removed from his personnel file.

 After receiving the warnings in April and May of 1993, Mr. Ankenbrant never again hugged or kissed Ms. Maher, or directed a sexually suggestive comment toward her. Nevertheless, on June 16, Ms. Maher went to Ms. Dellinger to complain about the cold, unfriendly and sarcastic manner that characterized Mr. Ankenbrant's dealings with her in the aftermath of her initial complaint. For example, when Ms. Maher remarked that all was quiet in the store one morning, Mr. Ankenbrant responded, "Oh good. Then I shouldn't have a problem controlling my temper." In her deposition, Ms. Maher described this and similar comments as "[not] necessarily sexual harassment, but he was mocking -- he was mocking me." Maher Dep. at 106. Ms. Maher then ...


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