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HARLEY v. MCCOACH

June 12, 1996

LISA HARLEY, Plaintiff,
v.
MICHAEL McCOACH, et al., Defendants.



The opinion of the court was delivered by: JOYNER

 Joyner, J.

 June 12, 1996

 This Memorandum and Order resolves the motion for summary judgment filed by Defendant PECO Energy Company ("PECO") in this employment discrimination action brought by Lisa Harley, an African-American woman and PECO employee. This 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

 The facts educed during discovery, presented in the light most favorable to the plaintiff, are as follows. PECO hired Ms. Harley in 1981 and assigned her to work as a "stockman" at a PECO warehouse located in Berwyn, Pennsylvania in May of 1992. Ms. Harley is one of just two women out of 35 people who work at the Berwyn warehouse. Each stockman is required to work in one of five work assignment areas--retail, wholesale, receiving, inventory, and the yard. The stockmen are assigned to these areas on a rotational basis, with each assignment period lasting two months. The retail, wholesale, receiving, and inventory areas are indoor assignments, requiring the employee to work in the warehouse, while the yard area is an outdoor assignment. Ms. Harley worked indoors during the first eight months of her tenure at the Berwyn warehouse, and was scheduled to rotate outdoors to the yard for the January and February 1993 time period.

 On January 4, 1993, the first day that she was scheduled to begin working in the yard, Ms. Harley called in sick and did not report for work. The following day, she presented her supervisor with a note from her doctor stating that she suffered from "recurrent upper respiratory infections" and that her health would be at risk if she were to work outdoors in the extreme cold. As a result, Ms. Harley was placed on modified duty, which made her ineligible for overtime, and was assigned to an indoor position. Ms. Harley complained about her ineligibility for overtime. After some discussion with the doctors involved, it was decided that Ms. Harley would not work outside if the temperature dipped below thirty-two degrees Fahrenheit.

 On January 14, 1993, while the discussions regarding her fitness for outdoor duty were ongoing, Ms. Harley went to a first-level supervisor, Andy Alba, and complained that she had been subjected to harassment. On the following day, Ms. Harley met for four hours with the Manager of Materials Management, Andy Serrill, and the Human Resource Manager for Materials Management, Carol Asselta. Ms. Harley related to them a number of specific incidents that she regarded as harassment, including: (1) a male worker walked past her and "passed gas," then turned to see her reaction, laughed and walked away; (2) a supervisor, Michael McCoach, walked directly behind her, and when Ms. Harley turned around, he grabbed her arm and rubbed it, saying "I'm not following you"; and (3) a worker named Ken Schiller put his arm around her and said "Hi Sweetheart" on several occasions, prompting Ms. Harley to remove his arm. Ms. Harley also reported that a number of the male employees often engaged in crude and vulgar behavior in her presence, including: (1) a male worker made a gesture suggesting masturbation to other male workers; (2) a male worker placed his tongue in another male worker's ear; (3) a male worker ate a danish out of another male worker's mouth; (4) a male worker thrust his pelvis against another man's buttocks so as to simulate a sexual act.

 Ms. Harley has submitted evidence from which a factfinder could infer that this sort of crude behavior was widespread. From the declaration of Mr. Alba:

 
4. The sexually offensive conduct of the workers was constant. Workers were always grabbing each other in offensive ways, tongueing each other's ears, eating danish pastries in ways that simulated oral sex, "humping" each other (one man pressing his pelvis against another man's buttocks to simulate a sexual act), telling sexually oriented jokes, making sexually oriented comments to and about each other, using profanity, openly displaying sexually oriented magazines and a host of other offensive activities. . . .
 
5. The conduct described above occurred in the presence of Lisa Harley and supervisors [in the warehouse]. The supervisors did nothing to stop this behavior. There was no support from senior management to changing the environment.

 Alba Decl. PP 4-5.

 Following the meeting of January 15, 1993, Mr. Serrill and Ms. Asselta launched an investigation of Ms. Harley's claims. Ms. Harley was immediately transferred from her department, Department 303, to Department 338 pending completion of the investigation. On February 16, the investigators interviewed the five first-line supervisors working in the warehouse, and later interviewed Messrs. Moyer and Schiller. Based on these interviews, PECO's investigators were able to verify a number of Ms. Harley's factual assertions. For example, the investigators concluded that some minor instances of profanity, wrestling, and homosexual taunting had occurred. None of this activity was directed at Ms. Harley, however; and the investigators concluded that it did not rise to the level of harassment. The other instances of which Ms. Harley complained could not be verified. Mr. Schiller denied putting his arm around her. Mr. Moyer denied rubbing his crotch against Ms. Harley's rear end, insisting that the contact amounted to nothing more than a bump. Mr. McCoach denied sending her the "Brown Sugar" electronic mail message.

 Ms. Harley contends that the investigators failed to examine the circumstances surrounding a number of other incidents that she had reported to Mr. Serrill and Ms. Asselta, including: (1) Mr. Schiller told Ms. Harley that she need not worry about injury after falling on her chest, since "you don't have anything up there"; (2) Mr. Schiller slid a raffle ticket down the front of his pants, rubbed his pants, pulled the ticket out of his pants and placed it in his mouth, all in Ms. Harley's presence; (3) a male worker began to undress in front of her; and (4) male employees would often read pornographic materials and wear tee-shirts displaying sexually explicit messages in the workplace. There is no evidence to suggest that PECO investigated or took remedial steps with respect to these allegations.

 Notwithstanding its conclusion that Ms. Harley's harassment claim could not be substantiated, PECO enacted a variety of remedial measures after completing the investigation. It required all employees in the department to undergo sexual harassment refresher training, during which employees were instructed to refrain from engaging in offensive behavior. PECO supervisors were instructed to conduct safety meetings regarding forklift usage. The three workers who had allegedly made physical contact with Ms. Harley received individual counseling. Further, Mr. Serrill ordered that the electronic mail capability be removed from the warehouse computer system to prevent its abuse by the stockmen.

 On April 5, 1993, Mr. Serrill and the other investigators met with Ms. Harley and informed her of the results of the investigation. Mr. Serrill also notified Ms. Harley that she would be required to return to Department 303. Ms. Harley strongly opposed reassignment to Department 303, based upon her perception that the workers there resented her for raising the harassment claim. She expressed these sentiments to Mr. Serrill, and also informed him that Mr. McConnell had heard Mr. Moyer state that he "would shoot Lisa in the head" if she returned to Department 303. Mr. McConnell also heard Mr. McCoach state that "if that n ***** ever came back here, she'll be gone," although it is not clear whether Ms. Harley notified Mr. Serrill of this comment. At any rate, Mr. Serrill elected to delay Ms. Harley's reassignment to Department 303 until PECO's Security Department could investigate the alleged threats made against her. The Security Department interviewed Mr. McConnell, who refused to identify the person who made the alleged threat. Mr. McConnell stated that he did not believe that ...


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