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October 19, 2000


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



On October 30, 1998, plaintiff Kathy C. Lidwell commenced this action with the filing of a complaint pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq. (Count I), and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. Ann. 951 et seq. (Count II). Lidwell also asserts supplemental claims under Pennsylvania law for intentional infliction of emotional distress (Count III) and negligence (Count IV). Lidwell alleges a sexually hostile work environment at her former place of employment, University Park Nursing Care Center (UPNC), operated by defendants SC Investors, Inc. The hostile atmosphere is alleged to have been created by defendant Carl Emanuelson, with later retaliation by defendant Carol Emanuelson.

One named defendant, Anne Ferguson, has been dismissed as a party by stipulation of all parties.

Default entered against Carol and Carl Emanuelson was set aside. By Memorandum and Order dated January 19, 2000, summary judgment in favor of the Emanuelsons was granted, with the entry of final judgment deferred pending resolution of the remaining claims. The claim asserted against the Emanuelsons (Count III) is no longer a part of the case, at least for present purposes, and Count IV, which was asserted against both UPNC and Ferguson, remains only as to UPNC. Counterclaims asserted by the Emanuelsons were withdrawn after summary judgment was granted in their favor with respect to Lidwell's claims.

In the same memorandum and order, we addressed a motion for summary judgment by UPNC which was limited to the issue of whether it took effective steps to end the harassment once it learned of Carl Emanuelson's conduct. Because there appeared to be evidence of other violations of Title VII after the report, we denied the motion for summary judgment. However, during the final pre-trial conference on January 28, 2000, counsel for UPNC indicated that renewal of the motion for summary judgment might be appropriate, and counsel for Lidwell later concurred. We therefore issued an order permitting the renewal of the motion. After a minor dispute between the parties as to the form of the motion, a renewed motion for summary judgment was filed by UPNC on May 23, 2000, and now is ripe for disposition.



Summary judgment is appropriate 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 judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added). . .[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986).

The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex at 323. He or she can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Celotex at 325.

Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson at 248. The court may not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). In determining whether an issue of material fact exists, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Boyle at 393; White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).

If the moving party satisfies its burden of establishing a prima facie case for summary judgment, the opposing party must do more than raise some metaphysical doubt as to material facts, but must show sufficient evidence to support a jury verdict in its favor. Boyle at 393 (quoting, inter alia, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).


We note initially that the factual development for the renewed motion for summary judgment is considerably more extensive that the initial motion. See Statement of Facts (appended to Motion for Summary Judgment), filed November 15, 1999 (consisting of 5 numbered paragraphs on one page); Statement of Material Facts filed May 23, 2000 (consisting of 26 numbered paragraphs on 9 pages). Based on this development, the court's analysis is more extensive. Our prior memorandum, then, is of no assistance at this time, and our review of both the facts and the applicable law is de novo.

We note as well that this task was made the more difficult by UPNC's failure to provide facts in a succinct form, see Local Rule for the Middle District of Pennsylvania LR 56.1, and in chronological order. We have attempted to restate the facts in a fashion more easily read. Some of the facts have been restated or clarified using the source documents cited by UPNC. For example, UPNC recites that it had a posted sexual harassment policy and that employees were provided with a copy of the policy with their paychecks, citing Lidwell's deposition testimony. Review of that testimony shows that Lidwell herself did not receive the policy, which went only to UPNC employees and not agency employees. Lidwell was shown a copy of the policy by an employee of UPNC who received it with a paycheck.

After completing her nursing classes at the end of May, 1995, Lidwell began work for Kimberly Quality Care, an agency which provided nurses to health care facilities when the facilities were short on staff. One of the places where she worked was UPNC. She began as an aide and later became a floor nurse or a charge nurse. She reported to a shift supervisor, who reported to the Director of Nursing. The Director of Nursing in turn reported to the Nursing Home Administrator. The shift supervisors to whom Lidwell reported varied throughout the time that she worked at UPNC.

Ferguson became the Administrator during the time that Lidwell was assigned to UPNC. Carl Emanuelson was one of the shift supervisors and, like the other shift supervisors, he was responsible for signing time slips when Lidwell worked his assigned shift.

In July, 1995, Lidwell was in a room with two patients when Carl Emanuelson entered. Carl Emanuelson asked Lidwell's age and Lidwell responded that it was none of his business. Carl Emanuelson laughed and stated that the two had a lot in common. Nothing about this conversation was offensive to Lidwell, and she did not report it or complain to anyone.

At an unidentified time, Lidwell handed her time slip to Carl Emanuelson, who was sitting at his desk. He asked what she had done to deserve the money (or pay) and threw the time slip back onto the desk. Lidwell found the behavior inappropriate but did not complain to anyone about the incident, nor did she report it because she was afraid that Carl Emanuelson would call the agency and cancel her shifts.

In the beginning of August, 1995, Lidwell was feeding a patient while Carl Emanuelson was working in the dining room passing trays. At the next table, an aide told a patient, "You need to set up there and eat that." Carl Emanuelson whispered to Lidwell, "I tell you that all the time but you don't listen."

In early to mid-August, 1995, while Lidwell was serving a patient a tray, Carl Emanuelson told the patient to "bite [her] ass," adding that "she would probably like that, huh?" When the patient laughed, Carl Emanuelson asked, "Pretty nice, Tony, is that what you're laughing about?" Carl Emanuelson made the comments from about ten feet away, but Lidwell was not looking at him at the time. Lidwell did not report the incident to anyone on that date.

In the middle of August, 1995, Lidwell was having a general conversation about nursing issues with Beth Isett when Lidwell mentioned to Isett that she was looking for another job because Carl Emanuelson made her uncomfortable. Lidwell also told Isett that her feelings were due to the comments made both to Lidwell and to other people.

Lidwell was afraid to go to the administration with her complaint. Because she worked weekends, she never really saw administration personnel or the Director of Nursing because neither the Administrator nor the Director of Nursing worked on weekends.

On another occasion, Lidwell suggested to Carl Emanuelson that he looked as though he had worked a double shift because of his unshaven appearance. Carl Emanuelson rubbed his face and said words to the effect, "This is to scratch your inner thighs with," or "I left this grow to scratch your inner thighs with." Lidwell did not complain about this incident at the time.

During a chance encounter with Isett, Lidwell told Isett that if Isett saw Ferguson, Isett should report these incidents. Lidwell also discussed the incident regarding Carl Emanuelson's beard with Glen Hotaling, a union representative.

Another incident Lidwell found offensive was on an occasion when Lidwell volunteered to help Carl Emanuelson set up an IV for a patient. When Carl Emanuelson asked if she was ready, Lidwell asked, "Ready for what? Are you ready for the IV site?" Carl Emanuelson responded, "You know what I want." Because Carl Emanuelson said this with "an undertone and the sneer and the laugh," Lidwell understood the statement to mean something sexual.

The last incident Lidwell found offensive took place near the time clock, when Carl Emanuelson said something to which Lidwell did not respond. Carl Emanuelson told Lidwell that she had an attitude. He added that he was going to call the agency and tell them that he did not want Lidwell there any more. This incident occurred sometime before September 28, 1995. Lidwell was told by someone at the agency in February, 1996, that they had received a telephone call from UPNC canceling Lidwell's shifts. The agency also was told that Lidwell was no longer allowed at the facility. Lidwell did not work at UPNC after being told about the call. Her last shift at UPNC was February 14, 1996, from 6:30 a.m. to 3:30 p.m.

On September 28, 1995, Lidwell received a call at home from Ferguson. Ferguson asked Lidwell exactly what was happening with Carl Emanuelson. It was Ferguson who initiated an investigation, as Lidwell had not complained to Ferguson. Ferguson told Lidwell to write everything down and give the report to her (Ferguson). Lidwell never prepared the report, nor did she ever speak, or request to speak, to Ferguson again about the matter. Lidwell never provided to Ferguson any specific complaints about Carl Emanuelson. Ferguson advised Lidwell that she could work different shifts or hours apart from Carl Emanuelson, but that she must provide that complaint to her employer because of her unwillingness to talk to Ferguson.

The investigation was sparked by a complaint from Carl Emanuelson that employees were circulating false rumors of a relationship between himself and Tammy Conway. A union representative also looked into the allegations of sexual harassment but found insufficient evidence to warrant filing a grievance about Carl Emanuelson's conduct. A local union representative was involved in the meeting investigating the conduct of Carl Emanuelson. Lidwell spoke to him and told him that she did not like Carl Emanuelson and ...

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