The opinion of the court was delivered by: James M. Munley, Judge
Before the court for disposition is the defendant's motion for summary judgment with respect to plaintiff's complaint alleging sexual harassment/hostile work environment. The plaintiff is Fredrick Collins, and the defendant is TRL, Incorporated. The matter is ripe for disposition having been fully briefed. For the reasons that follow, the motion will be denied in part and granted in part.
A second incident occurred a month to a month and a half after the plaintiff commenced his employment. Clark reached for plaintiff's groin area and said "Oop, got wood?" Pl. Dep. at 55. Plaintiff requested that Clark stop taking such actions. Id. After the first "grabbing" incident, the plaintiff spoke to his supervisor, Tony Carberry, about Clark's behavior. Id. at 57. Carberry took Clark's behavior as a joke and laughed. Id. at 58. Sometime after this incident, the record is not clear on when, plaintiff was whistling on the job. Co-workers had apparently told the plaintiff to stop whistling because they were "sick of it." Pl. Dep. at 59. However, in response to the whistling, Clark said to him, "You ought to put them lips where they belong," and he grabbed his own crotch. Id.
In February 2000, a second "grabbing" incident took place. Plaintiff states that "[Clark] just reached over, and he basically actually touched me. And I pulled right away. I said, `What the hell is the matter with you?' And he says, What? . . . You can't take a joke?" Pl. Dep. at 60. Clark did not "grab" the plaintiff but Collins felt his fingers touching. Id. at 64. Plaintiff again complained to Carberry about Clark actions, which he referred to as "sexual harassment." Carberry responded, "Oh, you and your legal terms." Id. at 61.
A third reaching incident occurred in March 2000. Clark reached for the plaintiff and said, "Hey, got wood?" Plaintiff informed Clark that he was "sick" of his behavior and he responded, "Boy, you can't take a joke." Plaintiff informed him that "I told you last time, no, not in that way." Pl. Dep. at 62. Therefore, plaintiff asserts that Clark reached for plaintiff's groin on three separate occasions from October 1999 until March 2000. Id. at 68. In addition to the sexual comments, Clark also told the plaintiff on eight or nine times that he was not performing his job adequately. Id. at 71. Ultimately, plaintiff met with Carberry and Paul Gossard, the defendant's vice president of fleet maintenance, regarding Clark's behavior. After this meeting, the harassment stopped. Id. at 92.
Plaintiff does not know whether Clark is a homosexual or whether he was actually making sexual propositions. Pl. Dep. at 62. He did, however, hear Clark joke in a sexual manner with other individuals in the shop "all the time." Id. at 62. He, in fact, witnessed Clark grab at others in the same way as he grabbed at plaintiff. Id. at 63. Plaintiff further testified that generally people other than Clark made jokes or used sexual innuendoes at that job site. Id. at 75-76. One of plaintiff's co-workers indicates that it was a running joke at TRL, Inc., to grab a co-worker by the genitals, and that this was called the "warehouse shake." (Pl. Ex. E, Armitage Affidavit). The co-worker also mentions that Clark annoyed himself and others with his lewd and/or sexual comments. Id.
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.
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 ...