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OGDEN v. KEYSTONE RESIDENCE
October 10, 2002
SHIRLEY OGDEN, PLAINTIFF
KEYSTONE RESIDENCE, PAMELA COVERT, JOE BERGAN, DOTTIE SERANA, AND MICHAEL POWANDA, DEFENDANTS
The opinion of the court was delivered by: James F. McCLURE, Jr., United States Distric Judge
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
I. SUMMARY JUDGMENT STANDARD
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
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
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
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
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
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
(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.
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 ...