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March 9, 2000


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


On November 4, 1998 at 6:30 p.m., Plaintiff Dwayne Jackson, an African American employee of Defendant T & N Van Service ("T & N"), arrived at a First Union facility at 401 Market Street to assist other T & N employees, Defendants Joseph Larose, Walter Felton and Christopher Larosa, in preparing pallets of items to be moved on the Concourse Level of the parking facility. While working, Plaintiff was grabbed from behind by Larose, who forced the loop of a hangman's noose over Plaintiff's head. Larose then hollered "skin him!" to Defendants Felton and Larosa, who smiled and laughed. Plaintiff was able to remove the noose and reported the incident to T & N supervisors and the police.*fn1

Defendant T & N Van Service terminated Larose, Felton, and Larosa, subject to Union proceedings for reinstatement. As a result of the Union grievance hearing, Felton and Larosa were reinstated with back pay; however, Larose remained terminated.

Plaintiff has been on an unpaid leave of absence since November 10, 1998. T & N has suggested to Plaintiff that he return to work, advising that he will be protected against any retaliation from Felton and Larosa and that the company will attempt to minimize his exposure to these two reinstated employees. (Pl.'s Resp. to Defs.' Mot. for Partial Summ. J., Ex. I, Letter from Betley to Krasner of 12/29/98, at 1.) However, absent a guarantee of separation from Felton and Larosa, Plaintiff believes that the company's previous failure to protect him from racial attack makes the return to T & N too physically dangerous to attempt and, thus, alleges that he continues to suffer lost wages and income as well as extreme emotional distress. Second Amended Complaint at ¶¶ 42-43.

On March 11, 1999, Plaintiff filed the Complaint in this matter alleging a variety of theories under state and federal laws.*fn2 Later, in response to Defendant Teamsters Local 676's Motion for a More Definite Statement, Plaintiff amended the Complaint on May 26, 1999. Then, on November 2, 1999, this Court granted Plaintiff's Petition to File a Second Amended Complaint, allowing Plaintiff to add a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") against Defendant T & N Van Service.*fn3

Before this Court is Plaintiff's Motion for Partial Summary Judgment on Counts I (42 U.S.C. § 1981), IV (New Jersey Law Against Discrimination) and VIII (Title VII) of his Second Amended Complaint against T & N Van Service, and a Motion for Partial Summary Judgment on behalf of Defendants T & N Van Service, Harry Murphy, Vince Harrington, Don Taddei, Ken Taddei, David Nelson and Russell Taddei, Jr., requesting that this Court rule as a matter of law that Defendants Larose, Felton and Larosa were not Plaintiff's "supervisors," and, thus, liability must be viewed under the test of "co-worker harassment," which requires the plaintiff to show that the company knew or should have known of the harassment and failed to take prompt remedial action. Kunin v. Sears Roebuck & Co., 175 F.3d 289 (3d Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999). For the following reasons, Plaintiff's Motion for Partial Summary Judgment will be denied and Defendants' Motion for Partial Summary Judgment will be granted.*fn4


"Summary judgment is appropriate when, after considering the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact remains in dispute and `the moving party is entitled to judgment as a matter of law.'" Hines v. Consolidated Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991) (citations omitted). "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating the absence of any genuine issues of material fact.*fn5 Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). Once the moving party has produced evidence in support of summary judgment, the nonmovant must go beyond the allegations set forth in its pleadings and counter with evidence that demonstrates there is a genuine issue of fact for trial. Id. at 1362-63. Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).


Plaintiff first contends that T & N Van Service is vicariously liable for the racially harassing actions of its employees, Larose, Felton and Larosa. According to Plaintiff, Larose was acting within the scope of his employment in perpetrating the attack on Mr. Jackson, and T & N is directly liable for that action. Second, Plaintiff asserts that, even assuming arguendo that Larose was acting outside of the scope of his employment with T & N in attacking Mr. Jackson, he was at least "aided by the agency relationship" and the attack was a "tangible adverse employment action" to which T & N may offer no defense. Plaintiff alternatively argues that if there is no "tangible adverse employment action," but T & N's employees were "aided by the agency relationship," an employer may offer the affirmative defense, but T & N cannot do so in this case.

Defendants respond that a threshold issue presented by Plaintiff's Motion is whether Defendants Larose, Felton and Larosa were supervisors or co-employees. This distinction is important because the standards of liability for employers are different depending on whether a supervisor or co-employee harasses the victim. Glickstein v. Neshaminy School District; No. CIV. A. 96-6236, 1999 WL 58578, *11 (E.D.Pa. Jan.26, 1999). Before examining whether the alleged harassers in the instant action are supervisors or co-employees, it is helpful to review the employer liability analysis set forth in the recent Supreme Court decisions Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

If the person charged with creating the hostile environment is the plaintiff's supervisor with immediate (or successively higher) authority over the employee, the employer will be ultimately liable for the supervisor's conduct, provided that the supervisor acted within the scope of the employment. Durham Life Ins. Co. v. Evans, 166 F.3d 139, 150 (3d Cir. 1999). "Acts fall within the scope of employment when they are of the kind [a servant] is employed to perform, occurring substantially within the authorized time and space limits, and actuated, at least in part, by a purpose to serve the master." Id. (internal quotations omitted). Harassment by a supervisor, however, generally does not fall within the scope of employment.*fn6 Id. (citing Ellerth, 524 U.S. at 757, 118 S.Ct. 2257).

"In cases of harassment falling outside the scope of employment . . . the employer could be vicariously liable when the `tortious conduct is made possible or facilitated by the existence of the actual agency relationship.'" Id. (citing Faragher, 118 S.Ct. at 2290). Under this "aided by the agency relationship test," an employer is liable for a supervisor's harassment of an employee if the employee suffered a tangible employment action. More specifically, the Court adopted the following holding:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defendant employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ.Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. . ...

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