complaining of the sexual harassment, plaintiff was informed that he had been moved to the second shift in April or May 2000. Id. at 35-36. After the switch, plaintiff did not return to work and after three days the defendant informed the plaintiff that they considered him as resigned. Plaintiff then filed the instant employment discrimination case.
Plaintiff's complaint is broken down into the following five counts: Count One, Hostile Work Environment and Sexual Harassment; Count Two, Retaliation; Count Three, Negligent Supervision; Count Four, Hostile Work Environment and Sexual Harassment (violation of Section 5 of the Pennsylvania Human Relations Act (hereinafter "PHRA")); Count Five, Retaliation (violation of Section 5 of the PHRA).*fn1 In June 2002, we dismissed Count Three of the complaint, negligent supervision, for failure to state a cause of action upon which relief could be granted. At the close of discovery, the defendant filed a motion for summary judgment, bringing the case to its present posture.
Standard of review
The granting of summary judgment is proper "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. See Knabe v. Boury, 114 F.3d 407, 410 n. 4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties w ill not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1 986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, de positions, ad missions, or answers to interrogatories showing that there is a genuine is sue for trial. Id. at 324.
In analyzing summary judgment motions in cases involving employment discrimination, a burden-shifting analysis is utilized which was set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must establish unlawful discrimination. The burden then shifts to the employer to proffer a legitimate, nondiscriminatory reason for terminating her. Once the employer has offered a legitimate reason, the burden shifts back to the plaintiff to demonstrate that the proffered reason was merely pretextual. Geraci v. Moody-Tottrup, Int'l Inc., 82 F.3d 578, 580 (3rd Cir. 1996) (citing McDonnell Douglas, supra and Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 24 8, 252-56 (1981)).
The defendant claims that judgment in its favor should be granted with respect to the sexual discrimination/harassment claims, hostile work environment claims and retaliation claims. We shall address each separately.
1. Sexual discrimination/sexual harassment.
Counts One and Four of the plaintiff's complaint assert causes of action against the defendant for sexual harassment and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 and the PHRA.*fn2 First, the defendant contends that judgment should be granted in its favor because plaintiff has not set forth facts sufficient to establish a prima facie case of sexual discrimination/sexual harassment or hostile work environment. Defendant claims that the plaintiff's same-sex gender discrimination claim cannot stand as the plaintiff has not established that plaintiff has been the subject of discrimination due to his sex.
Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added). The United States Supreme Court has interpreted this statute to include sex discrimination where, as is alleged in the instant case, the plaintiff and the discriminating party are the same sex. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). The Court stated, however, that in a same-sex sexual discrimination case, the plaintiff "must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex." Id. at 81 (emphasis in original, quotation marks omitted).
The Court explained as follows:
Courts and juries have found the inference of
discrimination easy to draw in most male-female sexual
harassment situations, because the challenged conduct
typically involves explicit or implicit proposals of
sexual activity; it is reasonable to assume those
proposals would not have been made to someone of the
same sex. The same chain of inference would be
available to a plaintiff alleging same-sex
harassment, if there were credible evidence that the
harasser was homosexual. But harassing conduct need
not be motivated by sexual desire to support an
inference of discrimination on the basis of sex. A
trier of fact might reasonably find such
discrimination, for example, if a female victim is
harassed in such sex-specific and derogatory terms by
another woman as to make it clear that the harasser is
motivated by general hostility to the presence of
women in the workplace. A same-sex harassment
plaintiff may also, of course, offer direct
comparative evidence about how the alleged
harasser treated members of both sexes in a mixed-sex