The opinion of the court was delivered by: McCLURE, Judge.
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Emanuelsons were withdrawn after summary judgment was granted in their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.
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
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
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
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
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
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
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.