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MINCIN v. SHAW PACKING CO.

December 30, 1997

LISA ANN MINCIN, Plaintiff,
v.
SHAW PACKING COMPANY and FRED McCREADY, Defendants.



The opinion of the court was delivered by: SMITH

 SMITH, District Judge

 I. Introduction

 Dispositive motions filed in this Title VII action require me to resolve two substantial issues. First, did an employer take "prompt and adequate remedial action" after it received actual notice of allegations by a female employee that she was being sexually harassed by a male employee. The defendant, Shaw Packing Company, has moved for summary judgment, contending that its remedial efforts were effective. Because there is a genuine issue of material fact regarding the adequacy of the remedial action, summary judgment on the Title VII claim will be denied.

 The other issue is whether the administrative processing of plaintiff's charge of discrimination tolls the running of the statute of limitations for her pendent state law claims. Defendants, Shaw Packing and Fred McCready, contend that the administrative proceeding does not toll the statute of limitations and that plaintiff's state law claims must be dismissed as untimely. I agree and will grant summary judgment for the defendants on the pendent state law claims.

 II. Facts and Procedural History

 Shaw Packing Company is a meat packing company located in Newry, Pennsylvania. Plaintiff began working in Shaw Packing's packaging room shortly after she graduated from high school in 1988. After leaving briefly to work for another employer, she returned in 1991 to work in Shaw's quality control office. Dkt. no. 20 at 12. Plaintiff's responsibilities included testing meat for fat and moisture, conducting inventories, ordering supplies, completing transmittal forms, and preparing ingredient statements for labels. Id. at 15. Her work space consisted of a small room at the back of the building, a space she often shared with McCready. Id. at 17.

 McCready was Shaw Packing's sausage maker, and his responsibilities included managing the kitchen and formulating the product. Dkt. no. 22 at 20. Each batch of sausage was required to undergo compliance testing, and McCready advised plaintiff on a daily basis when it was to be done. Id. In addition to working with McCready on compliance testing, plaintiff worked as needed in the packaging room or sausage kitchen if someone failed to report to work. Id. at 18.

 Beginning in November 1993 and continuing to February 1994, McCready allegedly persisted in a course of conduct which subjected the plaintiff to, inter alia, derogatory comments about the plaintiff which were punctuated with the four-letter "F" word, comments regarding sexual encounters that her family members allegedly had and/or should have in the future, comments regarding sexual encounters plaintiff should have with McCready and others, as well as inappropriate physical touching which included hugging, patting plaintiff's rear end and blowing down her shirt. Dkt. no. 20 at 28-40. Much of this conduct was committed in the presence of other non-supervisory employees. Plaintiff confided the details of this alleged harassment to some of her co-workers. Id.

 On February 14, 1994, one of plaintiff's co-workers informed plaintiff's supervisor, Roger Carpenter, of McCready's conduct and of the distress it was causing plaintiff. Dkt. no. 21 at 15-16. That same day, Carpenter was also approached by his secretary who requested that he talk with plaintiff regarding problems she was having at the plant. Id. at 17. Carpenter heeded these requests and called plaintiff into his office the next day when she arrived for work. After breaking down and crying, plaintiff related, over the course of an hour, what McCready had allegedly done. Dkt. no. 20 at 41; dkt. no. 21 at 17. Plaintiff advised Carpenter that she could not continue to endure McCready's offensive behavior, and that "she wanted them to keep him away from [her]." Id. at 43. Carpenter apologized for what had happened and indicated he would take action. Id. at 42.

 Carpenter contacted Richard Shaw, the president of Shaw Packing, immediately after the plaintiff left his office. Carpenter and Shaw agreed to meet with McCready the following morning. They "sat down with [McCready] and discussed these allegations pertaining to him and he denied every one of them." Dkt. no. 21 at 19. Carpenter affirmed in his deposition that

 
no action [was] taken at this time. What I did, I said okay, I said [to McCready] until I can come back from our meeting on Wednesday, I want you to talk to Lisa pertaining to this situation. And I said I want to see that this is ironed out or settled."

 Shaw also testified that he instructed McCready to apologize because he "wanted this thing resolved." Dkt. no. 22 at 49.

 Shaw viewed plaintiff's allegations about McCready as simply a "difference of opinions" and believed that "there was no reason to isolate her." Dkt. no. 22 at 58. He further opined that "there wasn't anything to protect her from" before her resignation. Id. He explained that "if this would have been two men, I would put them in a room and told [sic] them to fight it out." Id. Besides telling McCready to apologize, Shaw did not take any other immediate action to address plaintiff's complaints. Id.

 Consistent with Carpenter's and Shaw's instructions, McCready approached the plaintiff as she was sitting at her desk the following day. Plaintiff related that

 
he locked the door behind him and wanted to know why I told on him, said that he never did it. He never harassed me, he never said this, he never said that. And then he turned around and said that he did. And that he was sorry. That he did. That he don't know why he did it.

 Dkt. no. 20 at 47-48. According to the plaintiff, "he didn't apologize, he didn't mean it. He said he was sorry because he had to say he was sorry. He did not apologize. He was mad at me." Id.

 Carpenter checked with plaintiff the following day to inquire if McCready had approached her as instructed. Plaintiff advised Carpenter that McCready had apologized and Carpenter inquired if she was "happy." Id. at 51. See also dkt. no. 21 at 23. Plaintiff replied that she was, and again asked about "where the barriers were" so that she could be physically isolated from McCready. Id. Carpenter then pulled McCready from the plant floor and "said I understand the situation has been cleared up[] . . . and I want to thank you for taking care of it. And that was -- that's what happened then. So Friday [plaintiff] came to work again" and Carpenter thought that the problem between plaintiff and McCready had been resolved. Dkt. no. 21 at 24. Carpenter advised Shaw that McCready had apologized, and told him plaintiff had "accepted it and everything is fine." Dkt. no. 22 at 52.

 Plaintiff admits she did not inform Carpenter that McCready "had locked the door and wasn't too happy," but she "figured, if [Carpenter and Shaw] were going to tell him that I told on him, what should I do? What was I supposed to do?" Dkt. no. 20 at 52. She also failed to report to her employer that McCready's brother had come into her office sometime after McCready apologized, blew in her face and told her she was "worthless." Id. at 53. Plaintiff explained:

 
Why should I tell them, I told him what Fred did and they sent him back, back to my office. No, I didn't tell them any more [sic]. They weren't helping me. They weren't doing anything. What was I supposed to do?

 Dkt. no. 20 at 54.

 Plaintiff reported for work on Friday and again found that room dividers had not been installed in her office. While she was sitting at her desk and McCready was sitting at his table, she noticed that he was staring at her. After about twenty minutes, plaintiff asked McCready why he was staring. In response, he "grabbed his crotch and he winked at me." Id. at 56. Plaintiff left the plant at that point and did not return. On February 23, 1994, the company received a letter from plaintiff that indicated she was resigning due to sexual harassment. Dkt. no. 20, exh. 3. Carpenter was surprised that plaintiff quit because he thought the problem between her and McCready had been addressed. He conceded that the dividers plaintiff had requested were never installed, but claimed that plaintiff had not given her employer an adequate opportunity. Dkt. no. 21 at 39-40.

 The investigation consisted of having each employee complete a questionnaire which consisted of four questions. The questions inquired whether that employee had ever been subjected to any verbal or physical sexual harassment from McCready, or had witnessed such behavior, and whether they believed McCready would or could engage in conduct which would offend others because of its sexual content. The questionnaires were completed on March 1, 1994. Dkt. no. 23, exh. 1. Carpenter concluded that "ninety (90) percent of the response was against Mr. McCready." Dkt. no. 21 at 36. Carpenter believed that McCready should have been fired, but the recommendation by Carpenter, Shaw, and Butler, after consultation with the company's attorney, was that McCready should be suspended instead. Id. at 36-37. McCready received a Notice of Disciplinary Suspension of Employment from Shaw on March 14, 1994. The notice advised him that he was suspended for three days without pay and that "any additional acts of unlawful harassment on your part, including any form of retaliation, will result in immediate disciplinary action by the Company, up to and including the permanent termination of your employment with this Company." Dkt. no. ...


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