that defendant is vicariously liable
for the conduct of the supervisor and co-workers who created the
hostile environment. Defendant denies that the person charged
with the sexual harassment at the Kutztown Post Office was
plaintiff's supervisor. Rather, defendant claims that the conduct
at issue was undertaken by one of plaintiff's co-workers. Further,
defendant argues that since it took prompt remedial action to stop
the harassment upon learning of plaintiff's complaint, it cannot
be held vicariously liable for the conduct of plaintiff's
co-worker. Regarding plaintiff's employment at the Hamburg Post
Office, defendant argues that the conduct of which plaintiff
complains is not sufficient to constitute sexual harassment
because it was not sexually offensive or suggestive and plaintiff
can not show that it was motivated by her sex. The case is before
the court on defendant's motion for summary judgment as to all of
plaintiff's claims. For the following reasons, defendant's motion
will be granted.
The following facts are uncontested or viewed in the light
most favorable to plaintiff. Beginning on or about November 1,
1995, while employed at the Kutztown Post Office, plaintiff was
subjected to several unwelcomed sexual advances by Mr. Jay
Wentzel, another employee at the Kutztown Post Office. (Pl.'s
Aff., p. 1). These advances included Mr. Wentzel's rubbing
plaintiff's back, forcing food into plaintiff's mouth, placing his
hand under plaintiff's shirt, placing his hands inside the back of
plaintiff's pants, pulling plaintiff toward him in attempts to
kiss her, placing unwanted gifts and cards in plaintiff's car, and
generally harassing plaintiff. (Pl.'s Aff., p. 1). In fact, Mr.
Wentzel ultimately entered the Berks County Accelerated
Rehabilitative Disposition Program on charges of stalking and
harassing plaintiff. (Pl.'s Resp., Ex. B).
After these unwanted sexual advances occurred, plaintiff
reported Mr. Wentzel's conduct to her immediate supervisor,
Postmaster Robert Sarnoski. (Pl.'s Aff., p. 1). As a result of
plaintiff's report and because of his conduct toward plaintiff,
Mr. Wentzel was suspended for one week. (Def.'s Mem., Ex. 7).
Also, thereafter, the postal authorities arranged both plaintiff's
and Mr. Wentzel's work schedules to ensure that they both were not
physically present in the post office at the same time. (Pl.'s
Aff., p. 2).
On January 20, 1996, approximately two to three months after
Mr. Wentzel's alleged sexual advancements, Mr. Wentzel's son and
another man confronted plaintiff while she was delivering mail.
The unidentified man "made an angry face at [her], raised his fist
and shook it at [her]." (Pl.'s Aff., p. 2). On February 2, 1996,
plaintiff reported to work and was informed by a clerk that Mr.
Wentzel had telephoned and asked why plaintiff's car was at the
post office. (Pl.'s Aff., p. 2). In addition, on February 3,
1996, plaintiff was delivering mail after a particularly heavy
snowfall when she noticed tire tracks at each mailbox along her
route. (Pl.'s Aff., p. 2). According to plaintiff, she took
these tracks as an indication that "Mr. Wentzel was letting [her]
know that he had been there, by driving the route before [her]."
(Pl.'s Aff., p. 2). Plaintiff notified the postal authorities of
each of these incidents, but the postal authorities took no
action. (Pl.'s Aff., p. 3).
Due to the stress caused by Mr. Wentzel's sexual harassment
and by these three post-harassment incidents, plaintiff requested
and was granted a transfer to the Hamburg Post Office. While at
the Hamburg Post Office, plaintiff became aware that her
co-workers knew of her reasons for leaving the Kutztown Post Office.
(Pl.'s Aff., p. 3). In fact, plaintiff heard other employees
make statements to the effect that "they better watch what they
say or they might get in trouble for sexual harassment." (Pl.'s
Aff., p. 3). While employed at the Hamburg Post Office, plaintiff
was "treated like an outcast" and generally ignored by her
co-workers. (Pl.'s Aff., p. 3).
Plaintiff's claims raise three principal issues. The first
is whether Mr. Wentzel was plaintiff's supervisor. The second is
whether defendant took prompt remedial action to stop Mr.
Wentzel's harassment after learning of plaintiff's complaint. The
third is whether Mr. Wentzel's conduct during the alleged
incidents of January 20, 1996, February 2, 1996, and February 3,
1996 and the conduct of plaintiff's co-workers while she was
assigned to the Hamburg Post Office constituted discrimination
because of plaintiff's sex.
II. LEGAL STANDARD
Summary judgment is appropriate if the moving party can "show
that there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the
court must view the evidence in the light most favorable to the
non-movant. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986). The court must
accept the non-movant's version of the facts as true, and resolve
conflicts in the non-movant's favor. See Big Apple BMW, Inc. v.
BMW of N. Amer., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert.
denied, 507 U.S. 912, 113 S.Ct. 1262 (1993).
The moving party bears the initial burden of
demonstrating the absence of genuine issues of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548
(1986). Once the movant has done so, however, the non-moving
party cannot rest on its pleadings. See Fed.R.Civ.P. 56(e).
Rather, the non-movant must then "make a showing sufficient to
establish the existence of every element essential to his case,
based on the affidavits or by depositions and admissions on file."
Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct.
A. Title VII and PHRA Hostile Environment Claims
1. Employer hostile environment liability
A female plaintiff alleging that sexual harassment created an
abusive or hostile working environment must show by the totality
of the circumstances that a hostile or abusive working environment
exists "which is severe enough to affect the psychological
stability of a [female] employee." Andrews v. City of
Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (quoting Vance v.
Southern Bell Tel.& Tel. Co., 863 F.2d 1503, 1510 (11th Cir.
1989)). In order to prove a hostile work environment, plaintiff
must show (1) that she suffered intentional discrimination because
of her sex; (2) the discrimination was pervasive and regular; (3)
the discrimination detrimentally affected the plaintiff; (4) the
discrimination would detrimentally affect a reasonable person of
the same sex in that position; and (5) the existence of respondeat
superior liability. Kunin v. Sears Roebuck & Co., 175 F.3d 289,
293 (3d Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 398,
145 L.Ed.2d 310 (1999) (citing Andrews, 895 F.2d at 1482)).*fn1
An employer is not always vicariously liable for a hostile
work environment. Kunin, 175 F.3d at 293. Rather,
depends upon whether the person charged with creating the hostile
environment is the plaintiff's "supervisor with immediate (or
successively higher) authority over the employee." Faragher v.
City of Boca Raton, 118 S.Ct. 2275, 2292-93 (1998). If he is,
the employer will be ultimately liable for the supervisor's
conduct, provided that the supervisor took "tangible employment
action" against the employee. Id. at 2293. "Tangible employment
action" includes employment related actions such as "discharge,
demotion, or undesirable reassignment." Burlington Industries,
Inc. v. Ellerth, 118 S.Ct. 2257, 2270 (1998); Faragher, 118
S.Ct. at 2293. However, if the supervisor charged with creating the
hostile environment did not take "tangible employment action"
against the employee, the employer may raise as an affirmative
defense to liability the fact that it "exercised reasonable care
to prevent and correct promptly any sexually harassing behavior . . . and
that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise . . . ." Durham Life
Insurance Co. v. Evans, 166 F.3d 139, 150 (3d Cir. 1999) (quoting
Ellerth, 118 S.Ct. at 2270).
On the other hand, if the person charged with creating the
hostile environment is the claimant's co-worker, and not a
supervisor, "liability exists [only] where the defendant knew or
should have known of the harassment and failed to take prompt
remedial action." Kunin, 175 F.3d at 293 (citing Andrews, 895
F.2d at 1486) (citations omitted in original)). "Prompt remedial
action" is conduct "reasonably calculated to prevent further
harassment." Boneberger v. Plymouth Township, 132 F.3d 20, 26 (3d
Cir. 1997) (citing Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir.
2. Standard for determining whether the person
committing the harassment is a supervisor or co-worker
Neither Faragher nor Ellerth, the Supreme Court's latest
pronouncements on sexual hostile environment liability, expressly
defined the term supervisor for purposes of determining an
employer's liability for a hostile work environment. In Faragher,
the Court noted that the power to supervise includes the authority
"to hire and fire, and to set work schedules and pay rates. . . ."
Faragher, 118 S.Ct. at 2291.*fn2 Ellerth indicated that a
supervisor with the power to take "tangible employment action"
affecting another employee is one who could trigger "a significant
change in [the employee's] employment status, such as hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant
change in benefits." Ellerth, 118 S.Ct. at 2269.*fn3 In
Third Circuit has explained that the authority to act
alone on the employer's behalf, with no other controls, is not
required for an employee to possess supervisory authority. Durham
Life, 166 F.3d at 154-55.*fn4
In the aftermath of Faragher and Ellerth, the EEOC
has defined an employee's supervisor "[as] (1) the individual
[who] has authority to undertake or recommend tangible employment
decisions affecting the employee, or (2) the individual [who] has
authority to direct the employee's daily work activities."*fn5
Recently, in synthesizing these authorities, Judge Hutton
found helpful the following Seventh Circuit formulation:
Hence it is manifest that the essence of supervisory
status is the authority to affect the terms and
conditions of the victim's employment. This authority
primarily consists of the power to hire, fire, demote,
promote, transfer, or discipline an employee. Absent an
entrustment of at least some of this authority, an
employee does not qualify as a supervisor for purposes
imputing [sic] liability to the employer.*fn6
With these teachings in mind, the court turns to Mr.
Wentzel's employment status.
3. Was Mr. Wentzel plaintiff's supervisor or co-worker?
Plaintiff claims that "Mr. Wentzel falls under the category
of her supervisor as she was his sub[stitute] and he set the
schedule and let her know when she would be coming to work. He
also monitored and evaluated her work and gave her feedback if
warranted." (Pl.'s Resp., p. 7). None of these claims is
supported by affidavit, deposition testimony, or other citation to
In response, defendant argues that the position held by Mr.
Wentzel was not a supervisory position, but rather Mr. Wentzel
performed the job of rural carrier. Defendant asserts that the
pay grade assigned to Mr. Wentzel was not a supervisory pay grade,
that rural carriers are not authorized under the relevant
regulations to hire or fire or recommend hiring or firing of their
substitutes, and rural carriers do not participate in the hiring
process of their substitutes. Unlike plaintiff's proffer,
defendant's arguments are supported by the uncontroverted
affidavit of the Hamburg Post Office Postmaster. (Def.'s Mem.,
Ex. 18). Moreover, by plaintiff's own admission, her supervisor
at the Kutztown Post Office was Robert Sarnoski, the Kutztown
Postmaster, and not Mr. Wentzel. (Pl.'s Resp., p. 2-3). In fact,
plaintiff's own affidavit of July 21, 1997, refers to Mr. Wentzel
as "an employee [not a supervisor] from the Kutztown Post Office."
(Def.'s Mem., Ex. 5).
Finally, in her sworn testimony before an administrative
judge in the earlier stages of the litigation of this matter,
plaintiff stated that Mr. Wentzel was not "the management who
gives you the days to your schedule." Rather, plaintiff indicated
that John Wentzel was "the man I sub for . . . ." (Def.'s Mem.,
The burden of proof to show that Mr. Wentzel was plaintiff's
supervisor lies with plaintiff. Andrews, 895 F.2d at 1482
(explaining that plaintiff must establish employer liability as
element of hostile environment claim). As the party with the
burden of proof, plaintiff must show, at this stage of the
proceedings, the existence of a genuine issue of material fact
which precludes the entry of judgment for the
moving party on this
issue. Plaintiff, however, has not shown that Mr. Wentzel had
authority to hire, fire, re-assign, or demote her or set her work
schedule or pay rate, or that Mr. Wentzel had the power to take
tangible employment action against her or affect her daily work
activities. Given that plaintiff has failed to point to evidence
in the record to show the existence of a genuine issue of material
fact, the court concludes that plaintiff has failed to carry her
burden of proof of showing that Mr. Wentzel was her supervisor.
4. Defendant's liability for conduct that occurred
before January 2, 1996 at the Kutztown Post Office
Because Mr. Wentzel was plaintiff's co-worker, and not her
supervisor, defendant is liable for Mr. Wentzel's conduct in
creating a hostile environment only if it "knew or should have
known of the harassment and failed to take prompt remedial
action." Kunin, 175 F.2d at 293 (citation omitted).
Defendant claims that it first learned of Mr. Wentzel's
sexual advances toward plaintiff on January 2, 1996, when
plaintiff called the Postmaster for the Kutztown Post Office.
(Def.'s Mem., Ex. 4, p. 1). The next day, the Postmaster met with
plaintiff. (Def.'s Mem., Ex. 4, p. 1-2). At the conclusion of
this meeting, the Postmaster advised plaintiff that she would not
be forced to have any further contact with Mr. Wentzel until the
postal authorities could conduct an investigation of her
allegations. (Def.'s Mem., Ex. 4, p. 2). On January 26, 1996,
upon completion of the investigation, the Postmaster issued a
notice of suspension to Mr. Wentzel for sexually harassing
plaintiff and took care that the schedules of plaintiff and Mr.
Wentzel provided that they would not both be physically in the
building at the same time. (Def.'s Mem., Ex. 6, 7). Thereafter,
plaintiff applied for and was permitted to transfer from the
Kutztown Post Office to another post office in the same position
as she held in Kutztown. (Pl.'s Compl., ¶ 25).
The court concludes that suspending the offending individual,
taking specific steps to ensure that he would not come in contact
with plaintiff at the post office, and later agreeing to
plaintiff's request for a voluntary transfer to another post
office is conduct "reasonably calculated to prevent further
harassment." Boneberger, 132 F.3d at 26 (citation omitted).
Therefore, the court also concludes that defendant took "prompt
remedial action" to stop Mr. Wentzel from sexually harassing
5. Defendant's liability for conduct that occurred
after January 2, 1996 at the Kutztown Post Office
Plaintiff contends both that Mr. Wentzel continued to harass
her after January 2, 1996, when she first reported the matter to
the Kutztown Postmaster, and that the postal authorities took no
action in response to her complaints. (Pl.'s Aff., p. 3).
Plaintiff's proof of a post-January 2, 1996 hostile work
environment consists of three episodes of intimidation by Mr.
Wentzel: (1) a confrontation between Mr. Wentzel's son, an
unidentified man, both of whom were presumably acting at Mr.
Wentzel's direction, and plaintiff while plaintiff was delivering
mail and during which the unidentified man raised his fist in
anger toward plaintiff; (2) Mr. Wentzel's telephone call to the
Kutztown Post Office apparently to learn why plaintiff's car was
parked in the post office parking lot; and (3) finding tire marks
leading to every mailbox along plaintiff's mail route which she
deduced were made by Mr. Wentzel in an attempt to let plaintiff
"know that he had been there, by driving the route before [her]."
(Pl.'s Aff., p. 2). Plaintiff reported these incidents to the
postal authorities, but contends that the postal authorities took
no action. (Pl.'s Aff., p. 3).