day. Aware of Allen's discomfort around Platt, Amtrak officials
gave her the day off. (Allen Deposition I, at 84). Allen visited
a physician on her day off because of her anxiety regarding
Platt, and then, a few days later, she met with a counselor.
(Id. at 29, 84, 106). Allen took a leave of absence and did not
return to work until July 1996.
Platt's staring and following behavior resumed when Allen
returned to work in July 1996. On one occasion, when Platt was
following Allen, she entered the women's locker room. (Allen
Deposition III, at 269). Platt banged on the door, and when Allen
did not respond, Platt opened the door and walked into the room.
(Id.). Allen was clothed, sitting on a table. (Id.). Platt
said nothing, gave Allen "sort of like a smirk and turned around
and walked out." (Id. 269-70). Allen informed her union
representative of this incident, but did not tell any Amtrak
officials. (Id. at 274). In addition, Allen's co-workers teased
her about Platt, suggesting that he "wanted her." (Allen
Deposition III, at 299).*fn3
Soon after the locker room incident, Allen took another leave
of absence from August 1996 to February 1997, and again from May
1998 to November 1998.*fn4
The two separate actions brought by Allen are based on the same
set of factual circumstances, and therefore both of the actions,
No. 98-3421 and No. 99-130, will be considered here together.
According to Rule 56(c) of the Federal Rules of Civil
Procedure, "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law," then a motion for summary judgment must be
granted. The question before the Court at the summary judgment
stage is "whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law." See Anderson v.
Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986). The Court's role at summary judgment is not
to weigh the evidence, but to determine whether there is a
genuine issue for trial; that is, an issue upon which a
reasonable jury could return a verdict in the non-moving party's
favor. See id. at 249, 106 S.Ct. at 2511.
The moving party "bears the initial responsibility of informing
the district court of the basis for its motion, and identifying
those portions of `the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
The nonmoving party must then "go beyond the pleadings and by her
own affidavits, or by the `depositions, answers
to interrogatories, and admissions on file,' designate `specific
facts showing that there is a genuine issue for trial.'" Id. at
324, 106 S.Ct. at 2553.
In deciding whether there is a disputed issue of material fact,
the "inferences to be drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing the
motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)
(quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82
S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)).
A. Title VII
A plaintiff seeking to establish employer liability for a
sexually hostile work environment must establish the following
(1) the employee 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
Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999)
(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1482
(3d Cir. 1990)).
While Allen may be able to establish some or most of the first
four elements,*fn5 her claim fails because she fails to
establish that Amtrak's liability for Platt's conduct. See Knabe
v. The Boury Corp., 114 F.3d 407, 411 (3d Cir. 1997) (employer
liability is not automatic in hostile work environment cases).
1. Liability for Supervisory Conduct
An employer will be liable under Title VII when a hostile work
environment was (1) created by a "supervisor with immediate (or
successively higher) authority over the employee," and (2) that
supervisor took "tangible employment action against the employee"
(discharge, demotion, or work assignment). Faragher v.
City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 2292-93,
141 L.Ed.2d 662 (1998); see also Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 756, 118 S.Ct. 2257, 2270, 141 L.Ed.2d
633 (1998). If plaintiff is successful in establishing that the
harassment was caused by her supervisor, but fails to show that
the supervisor took tangible employment reaction, the employer
may raise an affirmative defense by showing that "(a) the
employer exercised reasonable care to prevent and correct
promptly any sexually 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. . . ." Durham Life Ins. Co. v.
Evans, 166 F.3d 139, 150 (3d Cir. 1999) (quoting Ellerth, 524
U.S. at 756, 118 S.Ct. at 2270).
Neither of the two elements of supervisory liability are
present in this case. First, Platt was not "supervisor with
immediate (or successively higher) authority over the employee."
See Faragher, 524 U.S. at 807, 118 S.Ct. at 2292-93. The term
"supervisor," in the context of, hostile work environment claims,
indicates a person with the power to hire, fire, set work
schedules and wages, or make changes in the work assignments or
benefits of the alleged victim. See Kent v. Henderson,
77 F. Supp.2d 628, 631-632 (E.D.Pa. 1999) (citing Faragher, 524
U.S. at 803, 118 S.Ct. at 2291 and Ellerth, 524 U.S. at 761,
118 S.Ct. at 2269). Plaintiff has produced no evidence that Platt
had the authority to hire her, fire her, set her work schedule,
or assign her work. In her deposition testimony, plaintiff
acknowledged that Platt, while nominally her supervisor for
approximately one hour each day, exercised no supervisory
authority over her. (Allen Deposition I, at 52). Plaintiff bears
the burden of showing a genuine issue of material fact as to
whether the alleged harasser was her supervisor, and I conclude
that Allen has not carried that burden. See Kent, 77 F. Supp.2d
at 631-632 (citing Andrews, 895 F.2d at 1482). Thus, Platt was
no more than an employee/co-worker for the purpose of determining
employer liability in a hostile work environment claim, and
Amtrak is not liable for Platt's conduct under a supervisory
2. Liability for Co-Worker Conduct
The Court of Appeals for the Third Circuit has recognized three
scenarios in which employers are liable for the harassment of
employees by co-employees: (1) when torts were committed by
employees in the scope of their employment; (2) when the employer
itself was negligent or reckless in failing to discipline, hire,
fire, or take remedial action; or (3) when the harassing employee
"relied upon apparent authority or was aided by the agency
relationship." Knabe v. Boury Corp., 114 F.3d 407, 411 (3d Cir.
1997) (quoting Bouton v. BMW of North America, Inc.,
29 F.3d 103, 106 (3d Cir. 1994)).*fn7
Under the first form of employer liability, Allen must show
that Platt's conduct took place in the scope of his employment
with Amtrak.*fn8 Conduct in the scope of
employment is defined by the Restatement (Second) of Agency §
(1) Conduct of a servant is within the scope of
employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized
time and space limits;
(c) it is actuated, at least in part, by a purpose
to serve the master; and
(d) if force is intentionally used by the servant
against another, the use of force is not
unexpectable by the master.
(2) Conduct of a servant is not within the scope of
employment if it is different in kind from that
authorized, far beyond the authorized time or space
limits, or too little actuated by a purpose to
serve the master.
Allen has not argued that Platt's conduct toward Allen was of
the kind he was authorized to perform as a foreman for Amtrak.
Nor has Allen has made any showing that Platt, in engaging in the
complained-of conduct, was "actuated by a purpose" serve Amtrak
or to further its business purposes. Rather, the evidence shows
at most that Platt was "motivated by reasons personal to
himself," an insufficient basis for a finding that he was acting
in the scope of employment. See Rabon v. Guardsmark, Inc.,