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October 10, 2002


The opinion of the court was delivered by: James F. McCLURE, Jr., United States Distric Judge



This is an employment discrimination case. Before the court are four motions: three motions for summary judgment and a motion for reconsideration of a prior order. The motions for summary judgment will be granted, and the motion for reconsideration will be denied.

Plaintiff Shirley Ogden is a former employee of Keystone Residence (Keystone), an agency that provides assistance to persons who are experiencing mental illness or mental retardation. She has brought a multitude of claims against both Keystone as a corporate entity and Keystone employees Pamela Covert, Joe Bergen (incorrectly spelled in the caption), Dottie Serina (incorrectly spelled in the caption), and Michael Powanda. Her claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq.; and the statelaw tort of intentional infliction of emotional distress. We have federal question jurisdiction over the Title VII and § 1981 claims. See 28 U.S.C. § 1331. We have supplemental jurisdiction over the PHRA claims and the claims for intentional infliction of emotional distress. See 28 U.S.C. § 1367.

Motions for summary judgment have been filed by Keystone and each individual defendant. Each motion will be granted because with respect to each of her claims, Ogden has failed to produce sufficient evidence such that a reasonable jury could rule in her favor.

We note that in the event of the dismissal of all claims over which we have federal question jurisdiction (which in this case consist of the Title VII and § 1981 claims), we have the option to decline to exercise jurisdiction over the state-law claims (which in this case consist of the PHRA claims and the claims for intentional infliction of emotional distress). See 28 U.S.C. § 1367(c)(3). In this case, though, because each claim is so clearly baseless, we will exercise jurisdiction over the state claims and dismiss them on the merits.

The motion for reconsideration, which is based on the court's denial of Ogden's request to use alternative means to record two depositions, will be denied because she has not met the stringent standard necessary for a court to grant her relief.


Motions for Summary Judgment


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).

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 Corp. v. Catrett, 477 U.S. 317, 323 (1986). "It can discharge that burden by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Once the moving party points to evidence demonstrating that no issue of material fact exists, the non-moving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor. Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 252 (3d Cir. 1999) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "Speculation and conclusory allegations do not satisfy this duty." Ridgewood, 172 F.3d at 252 (citing Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995)).


Keystone is a nonprofit human services agency that provides assistance to persons who are experiencing mental illness or mental retardation. It owns and manages group homes in which it provides residents with daily living assistance services.

Keystone hired Ogden in December 1997. She was hired as a Community Support Associate (CSA) in a Keystone facility located on Hudson Street in Harrisburg, Pennsylvania. The home was designated as the "Hudson Street Program." Ogden's initial rate of pay was $7.00 per hour, and she remained in the Hudson Street Program throughout her employment with Keystone.

When Ogden began her employment, Keystone provided her with a two-week-long initial orientation, which included training on Keystone's personnel policies. From December 1997 to June 1998, her immediate supervisor was Pamela Covert, Keystone's Program Director.

As Program Director, Covert reported to the Service Area Director, who at that time was Joseph Bergen. Unlike the Program Directors, who had the responsibility of overseeing a single Program, the Service Area Director had responsibility over several different Programs. Bergen had responsibility over Keystone's Hudson Street Program and other facilities.

Bergen reported to Michael Powanda, Keystone's executive director. Powanda was responsible for the overall management of Keystone's operations. During her employment with Keystone, Ogden spoke with Powanda on only two occasions (during lunch with new employees and exchange of pleasantries while passing in the hallway).

Dottie Serina is Keystone's Director of Human Resources. Serina is responsible for all aspects of human resources for Keystone in Dauphin and Cumberland counties. Wendy Deibert reports to Serina and occupies the position of recruiter.

On September 17, 1998, Ogden met with Bergen and Serina regarding her rate of pay. According to Ogden, her pay was not commensurate with the type of work that she was doing. She pointed out that she was doing hazardous work, such as working with a resident who had a communicable disease and tending to a resident who was physically aggressive. She cited a coworker, Bernard Melbaum, who was doing the same type of work but was being paid more money than she was receiving. According to Ogden, Melbaum told her that she should have been receiving a pay increase that was commensurate with her "hazardous duty."

Ogden complained to Keystone management about her rate of pay. Bergen and Serina told her that her pay rate was established not by the type of work being done but by a particular program's funding. They offered her the opportunity to transfer to a program that paid more than Hudson Street. She rejected this offer, and she elected to remain at the Hudson Street Program.

According to Ogden, she was denied training on various occasions and holiday pay on others.

Throughout Ogden's employment, Bergen made some sexually-themed comments in Ogden's presence. Twice he told her that he was gay. He asked her to set him up with Pete Thompson, a Keystone employee whom Ogden knew.

On one occasion, Bergen commented on the appearance of an employee named Mike, who appeared to look sad. Bergen stated to Ogden that "that's what the fuck he gets for being straight; he should be gay like me and he wouldn't have problems with bitches." On another occasion, Bergen told her that a white male was interested in him. He then stated that he preferred black men.

Bergen made other comments. He stated that he "love[d] niggers." He remarked that he was a "better bitch" than she was and that he could please black men better than she could. He said that he "love[d] black dick." Ogden cannot recall or estimate how many times he made these remarks or recall the specific details of any of these discussions.

From November 24, 1998 until February 9, 1999, Ogden took a leave of absence from work. During this leave of absence, Bergen did not harass her. When she returned to work, Bergen made similar comments.

Ogden believes that Bergen's comments were made on the basis of her race or sex. The following quote from Ogden's deposition details the reasons for this belief:

Joe had a problem with me because I was a black female and, in my opinion, that is something that I guess he wanted to be since he would talk to me about how he could be a better bitch than me and he could please black men better than me and all these things. He was comparing me to him. And I took it like he wanted to — he liked black men and, like, maybe black women are a threat to him, I don't know, or maybe he just has a thing because he wants to be one. I don't know, I don't know what his reasons are. I can only opinionate (sic) on trying to piece together the different things that he said to me. Why he would do that to me and what other people at Keystone has said that he said to them, the similar things, why he would do that to them and me is because I guess we were black.

(Ogden Dep., Rec. Doc. No. 29, at 257.; Plaintiff's Counterstatement of Material Facts, Rec. Doc. No. 36, at ¶ 24.)

Bergen never touched Ogden nor made any unwelcome physical contact with her. Moreover, he never exposed himself to her.

Throughout the course of her employment, Ogden submitted to Keystone a number of letters that raised complaints regarding her work situation. The complaints included, among other things, issues relating to resident health, a resident's inappropriate behavior, and complaints regarding her own pay increase. None of these letters touched on sexual harassment.

On or around June 4, 1999, Ogden wrote a letter to Powanda in which she outlined certain grievances she had with Keystone. The complaints included (1) the living conditions of residents in her program; (2) drug activity and criminal activity in the neighborhood; (3) loose dogs; (4) excessive noise; (5) flooding basements; (6) deficient food budgets; (7) insufficient staffing levels; (8) insufficient supplies; (9) peeling paint; (10) lack of leg room in the Keystone automobile; and (11) low-quality windows. The letter lacked any reference to Bergen's comments or any other harassment.

On June 7, 1999, based on her psychiatrist's recommendation, Ogden resigned from employment.

Keystone provides its employees with a written anti-harassment policy entitled "Discrimination Complaint Procedure." (Ogden Dep. Exhibit 12, Rec. Doc. No. 29.) The policy states that in the event an employee believes that he or she is being discriminated against on the basis of her race or gender, he or she may contact Keystone's Human Resource Specialist. At that point, the Human Resource Specialist may conduct an investigation into the allegations. Although Ogden does not recall receiving or being informed of an anti-harassment policy, she signed a verification form that indicated her receipt of Keystone's Personnel Guidelines, which referenced the Discrimination Complaint Procedure. Her signature indicated that she had read, understood, and acknowledged that as a condition of her employment, she was required to comply with Keystone's personnel policies and procedures.

Ogden never contacted Serina, the Human Resource Specialist, about Bergen's harassment. She did complain to other employees in her direct chain of command, Porscha Summers and Michael Gibson. She asked them how to report harassment allegations, and they told her to contact Powanda. According to Ogden, she tried to contact Powanda but Powanda ...

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