violating Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII")
and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq.
("PHRA"). Presently before the Court is Defendants' Motion for Partial
Summary Judgment. For the reasons that follow, we will grant in part and
deny in part the Motion.
Taken in the light most favorable to Plaintiff, the relevant facts are
as follows. Parkway operates several parking facilities in Philadelphia.
In August 1994, Plaintiff was hired by Parkway to work part-time as a
cashier at a Parkway facility. After working for several months,
Plaintiff eventually became a full-time cashier, working different shifts
at various Parkway locations throughout center city Philadelphia. During
this time, Sesay was the facility manager in charge of operations at all
of the Parkway locations where Plaintiff worked, and Oluwole was the
Assistant Manager at three of those locations.
While working at Parkway, Plaintiff received several disciplinary
notices for violations of company policy. First, in June 1995, she
received a written disciplinary notice from her supervisor, Moses
Harris, for a fight she had with another Parkway cashier. On February 2,
1996, Plaintiff received a second disciplinary notice, this time from
Sesay for sleeping while on duty. Sesay gave Plaintiff another
disciplinary notice on February 26, 1996 for again sleeping on the job.
The February 26 notice also indicated that because of the violation
Plaintiff was dismissed from her employment with Parkway.
Although Plaintiff concedes that she received the disciplinary notices
described, she alleges that throughout her employment she was subjected
to various forms of discrimination and harassment by Sesay and Oluwole.
According to Plaintiff, Oluwole asked her out on dates on several
occasions, directed sexual innuendo toward her, and, at least one time,
touched her breasts and buttocks. Plaintiff repeatedly reported these
incidents to Sesay, but no action was ever taken.
Plaintiff dual-filed a claim of sexual harassment and discrimination
with the Pennsylvania Human Relations Commission ("PHRC") on March 2,
1996. The PHRC subsequently found probable cause for the sex
discrimination claim and no probable cause for her sexual harassment
claim. Following a June 23, 1999 public hearing, the PHRC issued an
opinion and final order on Plaintiff's sexual discrimination claim on
January 27, 2000. On May 19, 2000, Plaintiff filed the instant action in
I. Legal Standard
When deciding a motion for summary judgment under Fed. R. Civ. P.
56(c), a court must determine "whether there is a genuine issue of
material fact and, if not, whether the moving party is entitled to
judgement as a matter of law." Medical Protective Co. v. Watkins,
198 F.3d 100, 103 (3d Cir. 1999) (internal citation omitted). In making
this determination, courts should view the facts, and reasonable
inferences drawn therefrom, in the light most favorable to the non-moving
party. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). For its part,
the non-moving party must, through affidavits, admissions, depositions,
or other evidence, demonstrate that a genuine issue exists for trial.
See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). In making its showing, the non-moving party "must do
than simply show that there is some metaphysical doubt as to the
material facts," id. at 586, and must produce more than a "mere scintilla
of evidence in its favor" to withstand summary judgement. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). If the non-moving party fails to create "sufficient disagreement
to require submission [of the evidence] to a jury," the moving party is
entitled to judgement as a matter of law. Liberty Lobby, 477 U.S. at
II. Hostile Work Environment
First, Parkway argues that Plaintiff has not presented sufficient
evidence to support her hostile work environment claims (Counts II, V,
VII, and XI). To state a hostile work environment claim, a plaintiff must
show that (1) she suffered intentional discrimination because of her
sex; (2) the discrimination was pervasive and regular; (3) the
discrimination detrimentally affected her; (4) the discrimination would
have detrimentally affected a reasonable person of her sex in her
position; and (5) respondeat superior liability exists. See, e.g., 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)). Parkway
claims that Plaintiff has not fulfilled the second element of the prima
facie case, that is, she has not established discrimination that was
sufficiently pervasive and regular. We agree.
For purposes of a hostile work environment claim, the discrimination
complained of must be pervasive and severe enough "to alter the
conditions of [the victim's] employment and create an abusive working
environment." Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 67, 106
S.Ct. 2399, 91 L.Ed.2d 49 (1986). In determining whether a plaintiff has
made the requisite showing, a court must consider the totality of the
circumstances, including "the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or a mere offensive
utterance, and whether it reasonably interferes with an employee's work
performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct.
367, 126 L.Ed.2d 295 (1993). It follows that the purview of Title VII
does not extend to all workplace difficulties, even where the conduct at
issue may be crass and unwarranted. Likewise, allegations of isolated or
single incidents of harassment do not constitute a cognizable hostile
work environment claim. See, e.g., Rush v. Scott Speciality Gases, Inc.,
113 F.3d 476, 482 (3d Cir. 1997) (citations omitted). Instead, liability
for such claims will only attach in situations where the conduct at issue
is so severe and pervasive to create an objectively hostile or abusive
work environment. Harris, 510 U.S. at 21.
In this case, Plaintiff's hostile work environment claim primarily
consists of four incidents that occurred over an eighteen month period.
Plaintiff first claims that in late 1994 or early 1995, Oluwole touched
her breast, told her she looked "fresh," and propositioned her to join
him later that evening. (Pl.'s Dep. at 26; Answer to Interrog. 10(c)). In
the second incident several months later, Oluwole made several suggestive
comments regarding Plaintiff's eyes and offered his financial assistance
if Plaintiff would go out with him. (Pl.'s Dep. at 45-49). On a third
occasion in spring 1995, Oluwole removed from his pants a large bottle of
wine, offered Plaintiff a drink, and then asked her to join him later at
a local hotel where they could have a "good time." (Id. at 41-44). The
fourth incident occurred in December 1995 when Oluwole, after
complimenting Plaintiff on her good work, patted
her on the buttocks and
breast. (Id. at 52-56). Beyond these specific events, Plaintiff claims
that Oluwole also made annoying or harassing comments about Plaintiff's
refusal to take help from him, her family background, and her poverty.
(Id. at 26, 41, 45, 46, 49).
While Oluwole's purported behavior is loathsome and inappropriate,
Plaintiff has at best demonstrated sporadic and isolated incidents of
harassment. The four specific incidents she cites occurred over nearly a
year and a half. See, e.g., Bonora v. UGI Utilities, No. CIV. A.
99-5539, 2000 WL 1539077, at *3-*4 (E.D.Pa. Oct. 18, 2000) (supervisor's
ten incidents of harassing conduct over two years not frequent enough to
create hostile work environment); Cooper-Nicholas v. City of Chester,
No. CIV. A. 95-6493, at *3, 1997 WL 799443 (E.D.Pa. Dec. 30, 1997)
(supervisor's comments over nineteen months not frequent enough to create
hostile work environment). Moreover, none of the events, with the
possible exception of the unwelcomed touching, were sufficiently severe to
rise to the level to make out a hostile work environment claim. See,
e.g., Bowman v. Shawnee State Univ., 220 F.3d 456, 463-65 (6th Cir. 2000)
(supervisor's rubbing employee's shoulders, grabbing employee's
buttocks, and offensive touching not severe enough to create hostile work
environment); Adusumilli v. City of Chicago, 164 F.3d 353, 361-62 (7th
Cir. 1998) (supervisor's four incidents of unwelcome contact with
subordinate's arm, fingers, and buttocks, along with repeated sexual
jokes aimed at subordinate, not severe enough to create hostile work
environment); McGraw v. Wyeth-Ayerst Labs. Inc., No. CIV. A. 96-5780,
1997 WL 799437, at *6 (E.D.Pa. Dec. 30, 1997) (supervisor's repeated
requests for date, kissing subordinate without her consent, and touching
her face not severe enough to create hostile work environment). Although
Plaintiff also claims that other derogatory comments were made throughout
her employment, her deposition testimony and answers to interrogatories
are nearly silent on these matters, vaguely referring only to "comments"
without any further detail as to their substance or when or how often
they occurred. Such comments, including the few repeated requests for
dates, may have been annoying and undoubtedly unwelcome, but they cannot
be characterized as patently offensive or severe. See, e.g., id.
Considering the totality of the circumstances, we find that Plaintiff
has failed to demonstrate sufficiently severe or pervasive
discrimination. As a result, we conclude that she has not satisfied a
necessary element of her hostile work environment claim, and we will
grant Defendants' Motion in this regard.
III. Sex Discrimination
Next, Defendants argue that Plaintiff cannot support her sex
discrimination claims (Counts I, IV, and X) because she has failed show
she was treated less favorably than similarly situated male employees. To
state a prima facie case for sex discrimination, a plaintiff must
establish that (1) she is a member of a protected class; (2) she was
qualified for her position; (3) she suffered an adverse employment
action; and (4) similarly situated non-protected members were treated
more favorably. See, e.g., Anderson v. Haverford College, 868 F. Supp. 741,
745 (E.D.Pa. 1994). Here, Defendants appear to concede that Plaintiff has
met her burden with respect to the first three elements, but argue that
she has not fulfilled the fourth element because she has failed to raise
any similarly situated men who were treated more favorably than her.
In her Complaint and briefs, Plaintiff points to two male Parkway
employees, Mohamed Gba-Kamara and George Boateng, as potential
comparators. Defendants focus much of their attention on Gba-Kamara,
arguing that he cannot be considered similarly situated because he was a
union employee whereas Plaintiff was a non-union employee. (Def.'s Mot.
at 13-15). Neither of the parties, nor the Court, has uncovered any case
law in the Third Circuit that addresses this precise issue, although
Defendants cite two cases from the Eleventh Circuit that support their
argument. See Marshall v. Western Grain Co., Inc., 838 F.2d 1165 (11th
Cir. 1988); McKie v. Miller Brewing Co., CIV. No. 90-46-ALB, 1992 WL
150160, at *4 (M.D.Ga. Mar. 6, 1992). For purposes of the present
motion, however, we need not reach this question because we find that
Boateng is a valid comparator. As Plaintiff points out, Boateng was a
male Parkway cashier who received several more disciplinary notices,
including two for sleeping on duty, than Plaintiff did before being
fired. The potential different treatment of Boateng and Plaintiff
fulfills the fourth element of the Plaintiff's prima facie case and
creates a sufficient issue of material fact to survive summary judgment.
IV. Individual Liability of Oluwole
Finally, Defendants argue that Plaintiff cannot maintain sex
discrimination claim against Oluwole under the PHRA. We agree.
Unlike Title VII, the PHRA provides for individual liability in limited
circumstances where employees "aid, abet, incite, compel or coerce the
doing of any act declared by the section to be an unlawful discriminatory
practice." 43 P.S. 955(e). Here, Defendants argue that Oluwole played no
role in the disciplining of Plaintiff or in the decision to terminate
her. As a result, Defendants maintain that Plaintiff cannot show that
Oluwole aided or abetted Parkway or Sesay in any discriminatory conduct.
Plaintiff does not respond to this argument in any way, and it appears to
the Court that there is no evidence of record suggesting that Oluwole
played any part in the decisions to discipline and/or fire Plaintiff. As a
result, Oluwole cannot be held individually liable under the PHRA, and we
will grant Defendants' Motion on this claim.
An appropriate Order follows.
AND NOW, this day of August, 2001, upon consideration of Defendants'
Motion for Partial Summary Judgment (Document No. 16), and Plaintiff's
Response thereto, it is hereby ORDERED that the Motion is GRANTED IN PART
and DENIED IN PART as described in the accompanying Memorandum.
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