overall scenario," 895 F.2d at 1484, and holds that "the offensive conduct is not necessarily required to include sexual overtones in every instance . . . to detrimentally affect a female employee." Id. at 1485. The key question therefore concerns not whether the conduct is sexual, but whether the conduct would detrimentally affect a reasonable woman in the plaintiff's position. See id. at 1486 ("Although men might find these actions harmless and innocent, it is highly possible that women may feel otherwise.") Accordingly, a court may not properly discount that part of the total scenario that does not include an explicit sexual component from its consideration of whether the plaintiff endured an objectively hostile workplace. In the present case, Ms. Harley has set forth evidence from which a jury could conclude that she endured a work environment that would detrimentally affect a reasonable woman in her position. Thus, we are not persuaded by PECO's initial argument in favor of summary judgment.
b. Respondeat Superior
PECO also argues that even if Ms. Harley could show that she was subjected to a hostile work environment, it cannot be liable to her under the facts raised during discovery. The district courts have been instructed to apply principles of agency law when determining whether there exists respondeat superior liability. Meritor, 477 U.S. at 72. Thus, "if a plaintiff proves that management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action, the employer will be liable." Andrews, 895 F.2d at 1486. The employer cannot be liable, however, if it promptly and adequately addressed the situation once it learned of the offending conduct. See Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 110 (3d Cir. 1994) ("an effective grievance procedure--one that is known to the victim and that timely stops the harassment--shields the employer from Title VII liability for a hostile environment").
PECO argues that Bouton shields it from Title VII liability because it had a grievance procedure in place, because Ms. Harley was aware of the procedure, and because it promptly and effectively investigated the allegations once Ms. Harley raised them. The difficulty plaguing this line of argument, however, is that it assumes that an employer is under no duty to address an allegedly hostile work environment until the harassed employee makes a complaint. Bouton makes clear, however, that the employer must take "prompt remedial action when the hostile environment is discovered " in order to avoid liability. Id. at 110 (citing Andrews, 895 F.2d at 1486); see Pittman v. Correctional Healthcare Solutions, Inc., 868 F. Supp. 105, 109 (E.D. Pa. 1994) (employer will be liable if it had knowledge or constructive knowledge of sexually hostile work environment and failed to take remedial action).
In the instant case, Ms. Harley has raised evidence suggesting that supervisory personnel had knowledge of a hostile work environment prior to the time she made her complaints, yet took no action to address it. Mr. Alba states in his declaration that he raised the issue with his supervisors on number of occasions both before and after Ms. Harley's assignment to Department 303, but was rebuffed. Further, Mr. Alba asserts that the allegedly hostile environment was open and obvious to supervisors and management, who did nothing to stop the behavior. Thus, there is reasonable grounds for dispute as to whether PECO took prompt and effective remedial measures once it became aware of the allegedly hostile work environment. Accordingly, we must deny PECO's motion to the extent it seeks summary judgment as to Ms. Harley's gender-based Title VII and PHRA hostile work environment claims.
2. Race-Based Claims
PECO also seeks summary judgment as to Ms. Harley's allegation that it violated Title VII, 42 U.S.C. § 1981, and the PHRA by subjecting her to a racially hostile work environment. As we noted above, these claims are analyzed under the same standard used to evaluate gender-based hostile work environment claims. In support of these claims, Ms. Harley points to the electronic mail message in which she was addressed as "Brown Sugar" and the allegation that she heard from Mr. McConnell that Mr. McCoach had referred to her using the word "n ***** ." Ms. Harley also notes that other workers teased her about an alleged tryst between her and Mr. McConnell by referring to her as the Whitney Houston character in "The Bodyguard," a film that depicts an inter-racial love affair.
In Drinkwater v. Union Carbide Corp., 904 F.2d 853 (3d Cir. 1990), the Third Circuit affirmed the district court's decision to award summary judgment in favor of the defendant as to the plaintiff's hostile work environment claim on the ground that the plaintiff was able to point to only two pieces of evidence suggesting a discriminatory bias against women. The court concluded that "two comments . . . are insufficient, in and of themselves, to support a hostile environment claim. Hostile environment harassment claims must demonstrate a continuous period of harassment, and two comments do not create an atmosphere." Id. at 863; see Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982) (mere utterance of a racial epithet does not alter the terms and conditions of employment to a significantly serious degree to implicate Title VII). This reasoning applies here and compels an award of summary judgment in PECO's favor as to Ms. Harley's race-based hostile work environment claims. The three incidents Ms. Harley cites are insufficient to create an issue of fact as to whether she endured a racially hostile work environment. Accordingly, we will award summary judgment to PECO as to these claims.
Ms. Harley has also brought retaliation claims under both Title VII and the PHRA. The relevant statutory provision reads as follows:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3 (1994). To make out a prima facie retaliation claim under either Title VII or the PHRA, the plaintiff must show that (1) she engaged in a protected activity; (2) the employer took an adverse employment action against her subsequent to or contemporaneous with such activity; and (3) there is a causal link between the protected activity and the adverse employment action. Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir.), cert. denied, 130 L. Ed. 2d 503, 115 S. Ct. 590 (1994); Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir.), cert. denied, 510 U.S. 865, 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993). Once this showing is made, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. The burden then shifts back to the plaintiff to show by a preponderance of the evidence that the reasons offered by the employer are unworthy of credence and a pretext for discrimination. Waddell v. Small Tube Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986); Kinnally v. Bell of Pennsylvania, 748 F. Supp. 1136, 1143 (E.D. Pa. 1990).
Upon review of the evidence submitted by the parties, we conclude that Ms. Harley has failed to identify facts sufficient to raise a prima facie case of retaliation. The first difficulty with the retaliation claims is that Ms. Harley fails to point to evidence of an adverse employment action that PECO took against her. In Nelson v. Upsala College, 51 F.3d 383 (3d Cir. 1995), the Third Circuit held that the employer must take action that adversely affects the plaintiff with respect to an employment relationship, as opposed to conduct that the employee generally finds objectionable. Id. at 387-88. To illustrate its holding, the court cited cases such as Lazic v. University of Pennsylvania, 513 F. Supp. 761 (E.D. Pa. 1981), in which defendant deleted positive references in plaintiff's personnel file after she filed a charge with the EEOC, and EEOC v. Cosmair, 821 F.2d 1085 (5th Cir. 1987), where the employer discontinued severance payments once the employee filed a complaint with the EEOC. The upshot of the cases cited by the Third Circuit is that a plaintiff cannot prevail on a retaliation claim unless the employer takes some action that has a negative impact on a present or future employment relationship.
Ms. Harley argues that PECO retaliated against her by: (1) forcing her to undergo a medical examination regarding her fitness for outdoor duty; (2) forcing her to return to Department 303 after the conclusion of the investigation; and (3) compelling her to attend a sexual harassment awareness training refresher in which Mr. McCoach was an instructor. While Ms. Harley may have found these actions objectionable, we cannot say that they adversely affected her employment relationship with PECO. The undisputed evidence suggests that Ms. Harley suffered neither a decrease in pay or benefits nor a demotion to a lower position during the time period relevant to this lawsuit. Moreover, she does not allege that adverse comments appear in her evaluations, that her eligibility for promotion has been compromised, or that PECO has in any way altered her employee status.
Even if we were to find that the actions taken by PECO affected her employment relationship, we would conclude that Ms. Harley has failed to raise an issue of fact as to causation. A plaintiff may satisfy her burden at the prima facie stage by showing that the adverse employment action was close enough in time to the protected activity to give rise to an inference of retaliation. Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990); Woods v. Bentsen, 889 F. Supp. 179, 187 (E.D. Pa. 1995). In Woods, this Court noted that "other courts generally hold that if at least four months pass after the protected action without employer reprisal, no inference of causation is created." Id. Accordingly, we held that "an adverse employment action, occurring a significant period of time following the exercise of rights afforded under Title VII, does not create an inference of causation in the absence of other evidence." Id. at 188.
The evidence before the Court reveals that Ms. Harley made her initial complaint to PECO in January 1993, and was not reassigned to Department 303 until September of that year. The time period between the two events is therefore too great to support an inference of retaliation. Moreover, since the filing of a complaint with the EEOC in November 1993 occurred after the alleged retaliatory act, there can be no causal link between those two events to support a retaliation claim. Accordingly, for this reason as well, we must award summary judgment to PECO with regard to Ms. Harley's retaliation claims.
C. Intentional Infliction of Emotional Distress
While the Supreme Court of Pennsylvania has yet to specifically recognize the tort of intentional infliction of emotional distress, lower courts have permitted plaintiffs to proceed under the theory "where the conduct in question is so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community." Rinehimer v. Luzerne County Community College, 372 Pa. Super. 480, 494, 539 A.2d 1298, 1305, appeal denied, 521 Pa. 606, 555 A.2d 116 (1988). Courts in Pennsylvania have applied the doctrine cautiously, permitting recovery only when the conduct is clearly outrageous. Williams v. Guzzardi, 875 F.2d 46, 52 (3d Cir. 1989); Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988). Indeed, our Court of Appeals has recognized that conduct in the employment context almost never gives rise to recovery under this tort theory:
As we noted in Cox, 861 F.2d 390 at 395, "the only instances in which courts applying Pennsylvania law have found conduct outrageous in the employment context is [sic] where an employer engaged in both sexual harassment and other retaliatory behavior against an employee." See, e.g., Bowersox v. P.H. Glatfelter Co., 677 F. Supp. 307, 311 (M.D. Pa. 1988). The extra factor that is generally required is retaliation for turning down sexual propositions.
Andrews, 895 F.2d at 1487. In light of this standard, Ms. Harley has clearly failed to raise evidence sufficient to create a jury issue as to her tort claim. See James v. International Business Machines Corp., 737 F. Supp. 1420, 1427-28 (E.D. Pa. 1990) (plaintiff who endured two years of relentless joking and harassment, and was called a "bitch" on two occasions, failed to raise a factual issue as to her intentional infliction of emotional distress claim). Accordingly, summary judgment will be awarded to PECO in this respect as well.
For the reasons set forth above, PECO's motion for summary judgment will be denied as to Ms. Harley's gender-based hostile work environment claims, but granted in all other respects. An appropriate order follows.
AND NOW, this 12th day of June, 1996, upon consideration of Defendant PECO Energy's Motion for Summary Judgment, and the response thereto, it is hereby ORDERED, for the reasons set forth in the preceding Memorandum, that said Motion is GRANTED IN PART as follows:
1. Defendant PECO Energy is hereby awarded summary judgment as to the claims contained in Counts II, IV, V and VI of Plaintiff's Complaint;
2. Defendant PECO Energy is hereby awarded summary judgment as to the race-based hostile work environment claims contained in Counts I and III of Plaintiff's Complaint; and
3. Defendant PECO Energy's Motion is hereby DENIED in all other respects.
BY THE COURT:
J. Curtis Joyner, J.