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June 16, 1999


The opinion of the court was delivered by: Joyner, District Judge.


This is an employment discrimination action brought by the plaintiffs, Michelle McLaughlin ("Michelle") and her husband Tommy McLaughlin ("Tommy") (collectively "McLaughlins") against the defendants, Rose Tree Media School District ("Rose Tree"), William T. Gamble ("Gamble"), Anthony R. Hicks ("Hicks") and Thomas K. Simpson ("Simpson") alleging claims of quid pro quo sexual harassment, hostile work environment sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et. seq.; claims under 42 U.S.C. § 1983 and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. § 951, et. seq.; and claims for intentional infliction of emotional distress, assault and battery and loss of consortium. Before the court is Rose Tree and Gamble's Motion for Summary Judgment pursuant to Federal Rule 56 of Civil Procedure. For the following reasons, the motion will be denied in part and granted in part.


Until January 26, 1996,*fn1 Simpson, Michelle's immediate supervisor, allegedly sexually harassed her and other female custodians. Among some of the acts by Simpson are that: he publicly sexually assaulted female custodians by touching their breasts, buttocks, and crotch areas; made inappropriate sexual comments, including bragging about the size of his penis and sexual prowess; questioned employees about their preferred positions while engaging in sexual intercourse; kept pornographic photos in his office which he showed to female employees; and exposed himself to one female custodian. Additionally, Simpson regularly and repeatedly issued threats of retaliation and intimidation toward employees.*fn2 Further, Simpson gave favorably treatment to one female employee, Florence McClaren, who submitted to Simpson's sexual advances while Michelle received less favorable treatment due to her refusal of Simpson's advances.

Beginning in 1993, Michelle and other female employees complained to Gamble about Simpson's sexual harassment and the favoritism shown to Florence McClaren. However, Gamble did not stop the harassment.

Hicks made advances on Michelle and on one occasion had sexual intercourse with her. Although he continued to pursue Michelle, she rebuffed his advances. Hicks then repeatedly came to Michelle's work area to ask if her husband was away, hit her on the bottom, tried to kiss her, and told her he was "the boss."

Craig Hopkins ("Hopkins") was the head custodian after Simpson. Hopkins tried to hug Michelle and sit on her lap without Michelle's approval. Anne Callahan, Rose Tree's personnel manager concluded in a memorandum to Dr. Laird P. Warren, the Superintendent of Schools that "Hopkins did engage in some inappropriate behavior including hugging female custodians, sitting on the laps of several female custodians . . ., making comments about coming to their homes which suggested that he was having a relationship with one or more of the female custodians and trying to kiss female custodians somewhere in the vicinity of their faces." (McLaughlins'.' Mem. Opp'n Mot.Summ.J.Ex. 18 at unnumbered pages 1-2).

In early 1998 Michelle was written up for infractions of work rules. At the same time Michelle found that the walls and toilets of the bathroom for which she was responsible were being smeared with feces. Michelle resigned on June 5, 1998.

On August 8, 1997 the McLaughlins filed the complaint. It was amended on May 1, 1998 and amended and supplemented on October 5, 1998 with the court's permission. The Amended and Supplemented Complaint contains nine counts. They are: Count I (Title VII Sexual Harassment — Quid Pro Quo), Count II (Title VII — Hostile Work Environment), Count III (Title VII — Retaliation), Count IV (42 U.S.C. § 1983 — Equal Protection), Count V (42 U.S.C. § 1983 — First Amendment), Count VI (Pennsylvania Human Relations Act), Count VII (Intentional Infliction of Emotional Distress), Count VIII (Assault and Battery), and Count IX (Loss of Consortium). Rose Tree is a defendant in Counts I to VI. Gamble is a defendant in Counts IV, V, VI, VII and IX. Both parties move for summary judgment.

I. Summary Judgment Standard

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505). Rather, we will grant summary judgment unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256, 106 S.Ct. 2505. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

II. Title VII Sexual Harassment Claims

Rose Tree moves for summary judgment on the Title VII sexual harassment claims (Counts I and II) alleging that because Simpson directed conduct of a sexual nature to men and women alike, Michelle has failed to show she suffered intentional discrimination because of her sex. A showing of intentional discrimination on the basis of sex is required for hostile work environment sexual harassment claims,*fn3 but not for quid pro quo sexual harassment claims.*fn4 This requirement is satisfied as a matter of course in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n. 3 (3d Cir. 1990). Here evidence of such conduct abounds. For example, Rose Tree dismissed Simpson in part because he sexually assaulted female employees, conveyed sexual comments to and about female employees under his supervision and issued threats of retaliation and/or intimidation toward employees under ...

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