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January 30, 2004.

JOHN W. ALLEN, SR., Plaintiff,

The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge


Plaintiff John W. Alien, Sr. (Alien) has filed a four-count Complaint*fn1 against his former employer, Defendant Mineral Fiber Specialists, Inc. (MFS), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and of the Pennsylvania Human Relations Act, 43 P.S. § 951 et. seq. Defendant MFS now seeks an order granting it summary judgment, pursuant to Fed.R.Civ.P. 56(c), with respect to Counts II and in of the Complaint, on grounds that there is no genuine issue of fact for trial and thus, it is entitled to judgment as a matter of law. For the reasons discussed below, as to both counts, we grant Defendant's Motion for Summary Judgment.


  The following are the circumstances of this case, as reflected most favorably on Plaintiff. Plaintiff Alien worked in the maintenance department of Defendant MFS from May 1988 until Page 2 he resigned on August 6, 2001. (Alien Dep. at 58, 199-200.) The culture of the work environment at MFS was characterized by horseplay and profanity. (See e.g., Hauff Dep. (explaining the culture of the plant, the use of nicknames, and the profanity used by everyone at the plant, including Plaintiff; Bealer Dep. at 23-26 (discussing the fairly common use of profanity and the term "gay boy.") Plaintiff himself admits to the use of profanity and name-calling. (See Alien Dep. at 72-76.)

  Plaintiff also recognizes the horseplay characteristic of the plant's culture (See e.g., Alien Dep. at 67-69 (discussing the history of "mooning" in the maintenance department)); in fact, Defendant himself has played practical jokes on his co-workers. (See e.g., Alien Dep. at 88-91 (discussing an incident where Plaintiff ate the cream out of a co-worker's oreo cookies, which the co-worker, unaware of Plaintiff's actions, later ate.)) This conduct resulted in a disciplinary write-up.

  Throughout his tenure, but starting in 1988, Plaintiff received multiple disciplinary write-ups, verbal warnings, and was placed on probation, for inappropriate behavior ranging from his practical jokes to his disregard for safety regulations and his failure to meet production standards. (See Alien Dep. at 276-339 (reviewing more than thirty disciplinary write-ups and probationary hearings); Hauff Dep. at 30-32 (discussing Plaintiff's poor productivity and Hauff's numerous recommendations that, due to his poor performance, Plaintiff be fired.)) However, Defendant never fired Plaintiff.

  Plaintiff was not very happy at MFS. He believes he had low self-esteem because his co-workers led him to feel dumb and that he could not obtain a job elsewhere. (Alien Dep. at 231.) He claims to have a learning disability and that his co-workers poked fun at him because he Page 3 could not read. (See Alien Dep. at 71-72, 88-91.) He also claims that his supervisor called him "fag boy" (Alien Dep. at 98), and that someone wrote on his truck an offensive phrase insinuating that he was a homosexual. (See Alien Dep. at 63, 99-101.)

  After one particular work incident in February 2001, for which Plaintiff's supervisor disciplined him because he resisted a direct order then operated the forklift in a dangerous manner (see Alien Dep. at 170-74), but during which Plaintiff claimed that his supervisor verbally assaulted him, Plaintiff's wife sent a letter to Jack Folck, the Chief Executive Officer of MFS. In the letter, she recognized that "some aspects of [Plaintiff's] personality [we]re less than pleasant," but complained that Plaintiff's supervisor harassed him and singled him out for being insubordinate, even though other co-workers failed to follow his instructions, as well. (Alien letter, 2/26/01, Pl.'s Br. Ex.A.) Plaintiff's wife further expressed her confusion at why Management had not fired her husband, despite "receiv[ing] so many disciplinary actions, the most recent being followed by a raise in pay two days later." (Alien letter.) After receiving this letter from Plaintiff's wife, Management offered to discuss their grievances; however, Plaintiff and his wife rejected the offer. (See Alien Dep. at 215-16.)

  Around February 2001, Plaintiff discovered that someone had drawn two offensive pictures of him at MFS. One drawing, located in the shower room of the men's bathroom, depicted him performing oral sex on another, unidentified individual. The other drawing showed Plaintiff receiving anal sex from his supervisor, Norman Bealer; both individuals had been labeled on the drawing. (See Alien Dep. at 263-69.) Despite Plaintiff's complaints to Management about the drawings within a few days of his discovering them, this drawing remained in the maintenance room for about one month. (Alien Dep. at 268-69.) Page 4

  Defendant indicates that he complained repeatedly to Ralph Klotz, the Comptroller at MFS, and that the CEO, Folck, also knew of his concerns about the harassment he received from his co-workers, who picked on him, and his supervisor, who singled him out. However, aside from the EEOC complaint that he filed in March 2001, he never filed any kind of written or formal complaint with MFS. (See Alien Dep. at 102-03, 147.) On March 31, 2001, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that he had "been subjected to an ongoing patter [sic] of harassment by his supervisor, Norman Bealer," which included "constant verbal badgering, as well as sexual harassment." Additionally, the EEOC complaint indicated that Plaintiff felt that because Defendant had not attempted to identify or penalize the individuals who had drawn the sexually offensive drawings and "was very lax in making any effort to remove th[e] drawing" of him performing oral sex on his supervisor, Defendant had "officially sanctioned this type of behavior." (EEOC Complaint, Bealer Dep., Ex.1.)

  Since the March filing of his EEOC complaint, Plaintiff identifies only one other incident that, despite the fact that Management did not discipline him, reflects the harassment that he endured. One morning in April 2001, someone placed a banana peel in his welding machine, which James Hauff, the operations manager, had to fish out of the machine. It angered Plaintiff that Defendant was not able to identify or punish the responsible party. That same morning, someone wrote the words "porn star chip tub" near Plaintiff's name on the schedule for dumping the refuse from the tub, which angered Plaintiff tremendously such that, in a very agitated state, he approached Hauff and demanded to know what Management was going to do about it. Plaintiff further claims that during that heated encounter, Hauff grabbed his arm. (See Hauff Dep. Page 5 at 57-66.)

  Conspicuously absent from the record is any evidence of activity, harassing or otherwise, between April 11, 2001 and August 2001. However, according to Plaintiff, he started looking for a job soon after he filed his EEOC complaint in March. After securing a position, for higher pay, with the Laborers Union, he resigned, on August 6, 2001. Through the Laborers Union, Plaintiff started working at Fabcon around "a couple days" or a week after he resigned. (See Alien Dep. at 198-200.)

  Plaintiff has filed the instant action, claiming that the verbal abuse he received from his co-workers and supervisor, as well as Management's failure to, in his mind, adequately address the sexually offensive drawings of him, constituted sexual harassment under Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e, and amounted to constructive discharge.

  In addition, Plaintiff claims that after he and his wife complained to Management about the harassment and filed the EEOC complaint in March, Defendant further harassed him by enhancing its monitoring and supervision of him. (See Alien Dep. at 345-46.) Moreover, because his supervisor followed him around, Plaintiff claims that his co-workers rebuked him. Additionally, Defendant claims that, in bad faith, Defendant destroyed several of his disciplinary write-ups, presumably to downplay the harassment; however, Defendant cannot identify any specific disciplinary incident for which the corresponding report is absent from the file. (See Alien Dep. at 150-56, 347-48.) According to Plaintiff, this conduct amounted to illegal retaliation under Title VII, 42 U.S.C. § 2000e-3(a).


  Pursuant to 28 U.S.C. § 1331, this Court has jurisdiction over this matter. See Northeast Page 6

  Women's Center. Inc. v. McMonagle, 939 F.2d 57, 59 (3d Cir. 1991).


  Pursuant to Fed.R.Civ.P. 56(c), Defendant moves for summary judgment on grounds that there exists "no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law."

  Rule 56(c) allows for summary judgment "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. An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and is material only if it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

  At the summary judgment stage, the moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thereafter, to defeat summary judgment, the non-movant must respond with specific facts "sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. At this stage, our role is "not [] to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; Country Floors v. Partnership of Gepner & Ford, 930 F.2d 1056, 1062 (3d Cir. 1991).

  We are required to view the record in the light most favorable to the non-moving party, Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 U.S. 1348, Page 7 89 L.Ed.2d 538 (1986); Betz Laboratories. Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981), and to resolve all doubts against the moving party. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). Because we find, after reviewing the record in a light most favorable ...

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