F.3d at 194-95 (evidence of prior harassment was
relevant to whether plaintiff was terminated because of discrimination).
Contrary to defendants' contention, plaintiff has not "simply relied on
conjecture, innuendo, and her own uninformed opinion that she was
terminated because of her age, gender and/or disability." Defs. mem. at
19. There is sufficient evidence from which a fact-finder could
reasonably conclude that Gehman's decision was motivated by gender, age
or disability discrimination. Plaintiff having the ultimate burden of
proof at trial, the issues must be referred to a jury.
B. Hostile work environment*fn15
"When the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working
environment, Title VII is violated." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The elements of
such a claim are as follows: "(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 liability." 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)). These factors include both a subjective standard
(no. 3) and an objective standard (no. 4). Andrews, 895 F.2d at 1482. To
determine whether a hostile environment exists, all relevant
circumstances should be evaluated — including the severity of the
conduct, whether it is physically threatening or humiliating or merely
offensive, and whether it unreasonably interferes with an employee's work
performance. Harris, 510 U.S. at 23, 114 S.Ct. at 371.
Plaintiff offered sufficient evidence to create triable issues as to
the first two elements. See Andrews, 895 F.2d at 1484-85 ("The pervasive
use of derogatory and insulting terms relating to women generally and
addressed to female employees personally may serve as evidence of a
hostile environment."); see also Hurley, 174 F.3d at 110 (3d Cir. 1999)
("a plaintiff may show that, while she was not personally subjected to
harassing conduct, her working conditions were nevertheless altered as a
result of witnessing a defendant's hostility towards other women at the
workplace"). According to plaintiff, Gehman frequently ranted about women
and also had fits of anger — screaming, yelling, and throwing
objects in his office.*fn16 Larkin dep. at 23-24; Toomey aff. ¶ 1.
Although defendants discount his angry outbursts as not directed at
anyone in particular, e.g., Klabunde dep at 42 ("He would throw things,
but not at people."), factual disputes exist as to
intimidating behavior was motivated by discrimination. See Spain v.
Gallegos, 26 F.3d 439, 447 (3d Cir. 1994) ("an employee can demonstrate
that there is a sexually hostile work environment without proving blatant
sexual misconduct . . . the intent to discriminate on the basis of sex
could be demonstrated through actions which `are not sexual by their very
nature'") (quoting Andrews, 895 F.2d at 1482 n. 3).
As to the third factor, defendants challenge whether plaintiff can show
that the discrimination detrimentally affected her. According to
defendants, "Apple Press may not have been the most ideal environment for
any person to work in, [however, plaintiff] was a willing and ready
participant in the exchange of sexually-oriented and adult jokes and
material throughout the course of her employment." Defs. mem. at 21.
While this appears to be true,*fn17 plaintiff's version of the evidence
is that Apple employees were constantly subject to Gehman's sexual
epithets and plaintiff felt physically intimidated by his behavior.
Although she complained "from time to time about his sexual and demeaning
comments and his sexual conduct . . . he did not stop." Toomey aff.
¶ 2. While perhaps this issue is a close call, after inferences are
drawn in plaintiff's favor, there is a factual question whether Gehman's
conduct, if proved, so impacted her as to have altered the terms of her
employment. See Troendle v. Yellow Freight, Inc., No. CIV. A.
97-CV-2430, 1999 WL 89747, at *5 (E.D.Pa. 1999) (although facts suggested
that plaintiff herself was an active participant in vulgar working
environment, dispute remained as to whether her participation reached the
level of obscenity about which she complained).
Moreover, given the alleged regularity of the crude and demeaning
language, a jury could find that a reasonable person in plaintiff's
position would have been affected detrimentally by the company's work
environment. Therefore, her claim withstands summary judgment as to the
objective or fourth factor.*fn18 In these circumstances, because triable
issues exist as to her claim of sexual harassment, this aspect of
defendants' motion must also be rejected and the motion denied.
An appropriate order follows.
AND NOW, this day of March, 2001, the motion of defendants Apple
Press, Ltd. and Gary Gehman for summary judgment is denied, there being
triable issues as to Title VII, PHRA, ADA, and ADEA violations.