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ALLEN v. MINERAL FIBER SPECIALISTS

United States District Court, E.D. Pennsylvania


January 30, 2004.

JOHN W. ALLEN, SR., Plaintiff,
v.
MINERAL FIBER SPECIALISTS, INC., Defendant

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

MEMORANDUM AND ORDER

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.

I. FACTUAL BACKGROUND

  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).

 II. JURISDICTION

  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).

 III. DISCUSSION

  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 to Plaintiff, that there is no genuine issue for trial, as to Counts II and III, we grant Defendant's Motion for Summary Judgment.

 A. Count II: Sexual Harassment Claim under Title VII

  Plaintiff alleges that the "ongoing and lengthy pattern of explicitly sexual harassment," which he endured during his employment, and which Defendant condoned, constituted a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and resulted in his constructive discharge from his employment. (Compl. ¶¶ 32-33.) Defendant argues that it is entitled to summary judgment because the same-sex sexual harassment suffered by Plaintiff does not constitute discrimination based on sex, which is required under Title VII. We agree and thus grant summary judgment to Defendant on Count II.

  The Supreme Court has established a two-prong test for determining whether same-sex sexual harassment violates Title VII. The plaintiff must first show that the sexual harassment "was not merely tinged with offensive sexual connotations, but actually constituted `discrimina[tion] . . . because of . . . sex.'" Oncale v. Sundowner Offshore Services. Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (emphasis, ellipses, and brackets in original); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir. 2001). The plaintiff must then show that the harassment was so severe or pervasive that it "create[d] an objectively hostile or abusive work environment." Harris v. Forklift Systems. Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Bibby, 260 F.3d at 264 n.6. Page 8

  Defendant argues that Plaintiff cannot make out the first prong of the test, that the alleged harassment constituted "discrimination because of sex," because there is no evidence in the record showing that the alleged harassment was motivated by sexual desire, a hostility to the presence of men in the workplace, or Plaintiff's failure to comply with gender stereotypes. (Def.'s Br. at 6.) Contrarily, Plaintiff claims that his failure to comport with male stereotypes motivated the alleged harassment. (Pl.'s Mem. in Opp. at 31.) Considering the record in a light most favorable to Plaintiff, we find that it fails to reveal any evidence that the alleged same-sex sexual harassment was motivated in any way by gender, much less by Plaintiff's purported failure to comply with gender stereotypes. As such, because Plaintiff cannot satisfy the first prima facie element of same-sex sexual harassment under Title VII, we must grant summary judgment to Defendant on Count II.

  The Third Circuit has identified three specific bases for establishing that same-sex sexual harassment constitutes discrimination based on gender: evidence that it was motivated by the sexual desire of the defendant harasser; evidence of general hostility by the harasser to the existence of the plaintiffs gender in the work environment; or evidence that the defendant was retaliating against or penalizing the plaintiff for not complying with gender stereotypes. Bibby, 260 F.3d at 264. Plaintiff fails to presents any such evidence.

  With respect to the first two scenarios, Plaintiff does not even allege, much less present evidence, that any of his co-workers or his supervisor were sexually attracted to him or that his colleagues were angry that a man held his position or were angry that other men worked at MFS.

  Furthermore, Plaintiff presents no evidence that anyone at MFS thought he was effeminate or did not act sufficiently masculine, such that it would demonstrate that he was being Page 9 punished for not conforming to gender stereotypes. He makes a general statement that "there was significant sexual stereotyping in the workplace, and [that he] was discriminated against . . . because he did not conform to gender norms or stereotypes," but he fails to identify what testimony or other evidence supports that argument. (See Pl.'s Mem. in Opp. at 31-32.)

  The seminal case involving sexual harassment based on gender stereotyping involved a female employee at a corporation whom Management had informed that if she wished to enhance her chances at promotion, she needed to adhere better to female stereotypes. See Price Waterhouse v. Hopkins, 490 U.S. 228, 235, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (noting that the company policy board's explanation of the plaintiff's failure to make partner included the advice that she " `walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry'"). Finding that the company's actions, based on a belief that women should not be aggressive, violated Title VII, the plurality of the Supreme Court reasoned that if one of the bases for an employer's decision was the fact that the employee was of a particular gender, gender motivated the decision and thus it violated Title VII. See id., at 250. In other words, to satisfy the first prong of the test for same-sex sexual harassment, based on gender stereotyping, Plaintiff needs to show that one of the reasons for his alleged constructive discharge is the fact that he is a man. Alien sets forth no such argument.

  Moreover, while Plaintiff provides an exhaustive list of cases that recognizes this basis for Title VII discrimination, he fails to establish any parallel between it and the facts of his case. Furthermore, we can easily distinguish those cases because, unlike here, they identify male stereotypes that the defendants believed the plaintiffs failed to satisfy, thus establishing a basis for a sex discrimination claim. See Pl.'s Mem. in Opp. at 30-31 (identifying numerous cases that Page 10 have recognized gender discrimination claims raised by men). For example, Plaintiff cited a ruling by the Ninth Circuit that recognized a viable Title VII claim where the openly gay plaintiffs co-workers blew him kisses, called him "sweetheart," caressed and hugged him, grabbed his crotch, and touched him as if he were a `woman. See Rene v. MGM Grand Hotel. Inc., 305 F.3d 1061, 1064 (9th Cir. 2002).

  In the lone case cited by Plaintiff from this Circuit, this Court rejected the plaintiffs Title VII claim on grounds that he did not sufficiently show that the same-sex harassment was based on his gender. In Bianchi v. City of Philadelphia, co-workers placed explicit, "homosexual" playing cards and other materials insinuating that he was homosexual within the belongings of the male firefighter plaintiff, as well as made reference to his position at the fire department as a "pussy job." 183 F. Supp.2d 726, 731-32, 737 (E.D. Pa. 2002). The court found that any link between these incidences and gender stereotypes was too attenuated to survive summary judgment. Even the comment regarding his job position, which could be characterized as a female reference, failed to demonstrate that the sexual harassment was based on gender because the plaintiff failed to argue that his co-workers targeted him because they thought that he did not comply with a male stereotype. See id. at 737.

  Similarly, here, Alien fails to allege any intent by anyone at MFS to target him because they thought that he acted too femininely or did not conform to a particular male stereotype. As such, his claim under Title VII must fail.

  Plaintiff then discusses two circuit court decisions that merely highlight this critical deficiency in his argument. In Nichols v. Azteca Rest. Enter., Inc., the plaintiff endured "a relentless campaign of insults, name-calling, and vulgarities," occurring a number of times per Page 11 week and often throughout the day, which included repeated references to the male plaintiff as a woman, mockery that he performed his job duties in an effeminate manner, and taunting that he was a "faggot" and a "fucking female whore." 256 F.3d 864, 870 (9th Cir. 2001). Additionally, the plaintiff in Doe by Doe v. City of Belleville. Ind. wore an earring, on which basis his co-workers harassed him. See 119 F.3d 563, 581-82 (7th Cir. 1997), vacated on other grounds, 523 U.S. 1001, 118 S.Ct. 1183, 140 L.Ed.2d 313 (1998) (finding it to be an "obvious inference" that if the plaintiff had not been a man, his co-workers would not have questioned his gender for wearing an earring).

  Unlike the clear cases of gender stereotyping and harassment in Nichols and Doe, we underscore that conspicuously absent from Alien's argument is any evidence or notion that his co-workers thought that he did not subscribe to a particular male stereotype. For example, Plaintiff alleges that the testimony of Ralph Klotz, the MFS comptroller, shows how MFS discriminated against Plaintiff because he did not conform to gender stereotypes. However, nothing in Klotz's deposition establishes how Alien was perceived not to have conformed to a male stereotype. Klotz's deposition reveals only that he was aware of the drawings and the name-calling, which Defendant does not dispute, and which does not establish how the harassment was based on Plaintiff's failure to conform to male stereotypes. (See Pl.'s Mem. in Opp. at 22-23.)

  Moreover, while Klotz's deposition summary notes that Klotz thought that Alien's supervisor "treated people differently" and that "Alien was being mistreated with regard to certain issues," Plaintiff neither identifies specifically what those issues are, nor, more importantly, establishes whether any such treatment was motivated by a belief that Plaintiff did Page 12 not act sufficiently like a stereotypical male. (Pl.'s Mem. in Opp. at 23.) In fact, Klotz indicates that the term "fagboy" was used "in general" as horseplay at MFS, was directed at various co-workers, and that even Plaintiff may have used the term. (Klotz Dep. at 36-37.) This statement appears to refute Plaintiff's contention, implying instead that the term's connotation played no role in its use by Plaintiff's co-workers.

  Furthermore, Plaintiff's own deposition fails to reveal any evidence that Plaintiff's co-workers did not believe that he conformed with stereotypes. In fact, Plaintiff admits that he does not even know their motivation for the harassment. (See Alien Dep. at 360, 369 (stating that he "[did not] know what they were thinking" when asked what he thought was his harassers' motivation, and whether he thought the harassment was motivated by a belief that he did not conform to gender stereotypes or that his co-workers thought that he was a homosexual.))

  Furthermore, Plaintiff provides no basis for a reasonable inference that the drawings depicting him in a sexually offensive manner were motivated by a belief that he did not conform to male stereotypes. One might only reasonably infer that, despite his marital status, certain co-workers thought that Plaintiff might be homosexual; however, precedent is clear that Title VII does not protect discrimination based on sexual orientation. See Bibby, 260 F.3d at 260-61. As such, Plaintiff's argument that his same-sex sexual harassment was based on his failure to conform to sex stereotypes of masculinity fails.

  Despite Plaintiff's failure to set forth facts demonstrating one of the three established paradigms for showing discrimination based on sex, the Third Circuit does not limit to those three scenarios the manners in which one can show such discrimination, noting that "[b]ased on the facts of a particular case and the creativity of the parties, other ways . . . may be available." Page 13 Bibby, 260 F.3d at 264. However, beyond the unpersuasive general statement that he was discriminated against because he did not comply with male stereotypes, Plaintiff does not allege any specific motivation for the alleged harassment he endured. (See Pl.'s Mem. in Opp. at 32.) As such, no reasonable factfinder could conclude that he was discriminated against because of sex, and summary judgment is warranted.*fn2

 Constructive Discharge

  Plaintiff further alleges within Count II that the adverse employment actions of Defendant amounted to constructive discharge because the continued harassment and retaliation that he suffered created a sufficiently hostile environment that he was forced to resign. For example, Plaintiff stated that he began searching for a new job just "a couple [of] days" after filing his complaint with the Equal Employment Opportunity Commission (EEOC) because "nobody would talk to [him]," instead cursing at him and telling him to leave the work area because his supervisor would follow him there. (Alien Dep. at 136-37.)

  Because Plaintiff sets forth no argument or evidence to show that his gender motivated the actions of his co-workers, he cannot raise a successful constructive discharge claim before a jury. However, even if we were to find that Plaintiff's allegations qualified as discrimination under Title VII, we agree with Defendant that the treatment by Plaintiff's co-workers and supervisor does not meet the objective standard required to establish a claim of constructive discharge under Title VII.

  This Circuit has established that to raise a viable claim under the constructive discharge Page 14 doctrine, the plaintiff need satisfy the objective standard of showing that "the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir. 1984). This standard requires that the conditions exceed an objective threshold of intolerability, where the plaintiff does not merely consider resignation the best decision, or even subjectively the only decision, but rather, where a reasonable person would feel "compelled to resign" based on the belief that s/he had no other choice. Connors v. Franklin Financial Corp., 160 F.3d 971, 976 (3d Cir. 1998) (emphasis in original; internal quotations and citations omitted). The allegations set forth by Plaintiff simply do not meet this threshold of intolerability.

  The Third Circuit has identified several factors upon which employees have alleged constructive discharge: threats of discharge; persuasion or suggestion that they resign or retire; demotion; reduction in salary or benefits; involuntary transfer to a less desirable placement; a change in job duties; and sub-par performance evaluations. Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993). While these factors do not represent an exhaustive list, we find it significant that, of these factors, Plaintiff can establish only that he received unsatisfactory performance evaluations, the credibility of which he does not seem to refute. (See e.g., Alien Dep. at 350-54, Ex. D-14.)

  Moreover, all of the cases cited by Plaintiff in this Circuit involve Clowes factors and substantial changes to those plaintiffs' employment conditions and responsibilities. See Pl.'s Mem. in Opp. at 34-35 (citing cases involving demotions or lateral transfers that resulted in diminished work conditions). Furthermore, the cases that Plaintiff highlights only undermine Plaintiff's argument because they set forth facts that establish clear cases of constructive Page 15 discharge, and Plaintiff can establish no nexus between them and his circumstances.

  For example, Plaintiff discusses in detail the Third Circuit's decision to overturn summary judgment in Levendos v. Stern Entertainment. Inc., 860 F.2d 1227 (3d Cir. 1988), but fails to establish any parallel between those facts and his own situation. As Plaintiff correctly indicates, Levendos involved a female restaurant worker who had been promoted to a management position but who had been excluded from management meetings and denied other liberties consistent with her position, despite the fact that males previously holding her position had received such privileges. Further, she was informed that the restaurant intended to replace her with a man and was forced to endure false accusations of stealing and a conspiracy to falsely accuse her of consuming alcohol on the job. See id. at 123; Levendos v. Stern Entertainment. Inc., 909 F.2d 747, 753-54 (3d Cir. 1990) (Levendos II); see also Pl.'s Mem. in Opp. at 34-35.

  Plaintiff here makes no similar allegations. He never contends that he applied for a promotion that he did not receive, much less that he was denied privileges specific to his position that women in his same position enjoyed. Management never told him that they were thinking of replacing him with a woman. At most, the record includes a statement from Plaintiff that, after he resigned, another individual heard Management comment that "it worked"; however, even if we were to find it a reasonable inference to believe that the comment reflected a conspiracy to force Plaintiff to resign, Plaintiff sets forth no basis for concluding that his gender served as the impetus for Management's urging him to resign.

  Finally, he never suffered false accusations of anything as egregious as stealing or drinking while he worked. Despite Plaintiff's claim that Defendant falsely accused him of stealing a grinder (Alien Dep. at 233), the disciplinary report shows that, after further Page 16 investigation, the manager found that Plaintiff did not take the machine without permission and that the language reflecting the allegation was deleted from the report. (Klotz Dep. at Ex.1.)*fn3 As such, no reasonable jury would find that Defendant falsely accused him of stealing the grinder. Thus, Plaintiff's allegations do not begin to rise to the level of the "the serious grievances [raised by Levendos] which would constitute constructive discharge." Levendos II, 909 F.2d at 754 (internal quotes and citation omitted).

  Levendos II further highlights another important deficiency in Plaintiff's argument, as it determined whether a valid constructive discharge claim requires that the employee provide notice to the employer prior to resigning. While the Third Circuit held that such notice was not a prerequisite to invoking the constructive discharge doctrine, it did conclude that whether the employee provided notice was an appropriate factor to consider. See 909 F.3d at 751. Levendos made several attempts over many months, as well as numerous phone calls to the manager the day before she resigned, to communicate her complaints to him. He never provided her the opportunity to discuss her grievances. 909 F.2d at 753.

  Contrarily, Defendant offered Plaintiff the opportunity to discuss his grievances after Valerie Alien wrote the February 2001 letter about her husband's allegations of harassment; however, Plaintiff rejected the offer. (See Alien Dep. at 215-16.) Moreover, while Plaintiff alleges that he complained numerous times, he admits that he never filed a formal complaint with MFS (Alien Dep. at 103), and that he complained only to Ralph Klotz, the Comptroller, who did Page 17 not have authority to affect any change. (See Alien Dep. at 147, 230-31).*fn4 In fact, beyond his verbal complaints to Management regarding the sexual drawings and his EEOC complaint, the record reflects only one other complaint, during April 2001,*fn5 before Plaintiff decides to resign five months later, in August 2001.

  Finally, the lone sexual harassment case of constructive discharge cited by Plaintiff is clearly distinguishable, as it involves a substantially stronger set of facts than Plaintiff's allegations. Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), cert. granted, Pennsylvania State Police v. Suders, 124 S.Ct, 803 (U.S. Dec. 1, 2003) (No. 03-95), involved a female plaintiff whose male superiors subjected her to a daily torment of "sexual suggestions, innuendoes and solicitatious [sic] behavior," which included lewd and graphic gestures and comments regarding her body, bestiality, and oral sex and "repeated acts of intimidation." Id. at 443, 446 (internal quotes omitted; brackets in original).

  This reprehensible harassment culminated in their conspiring to falsely accuse her of theft, for which they "treated her as they would an accused suspect," handcuffing and photographing her, reciting her Miranda rights, and interrogating her without permitting her to leave until she made clear her intent to resign. Id. at 439. In no manner does the discomfort Plaintiff felt by being shunned by his co-workers, closely monitored by his supervisor, or the current target of some crude drawings, which may have been used for years to poke fun at Page 18 various employees, approach the level of intolerability endured by the plaintiff in Suders.

  While we certainly do not undermine the unrest suffered by Plaintiff, "`the law does not permit an employee's subjective perceptions to govern a claim of constructive discharge.'" Gray v. York Newspapers. Inc., 957 F.2d 1070, 1083 (3d Cir. 1992) (quoting Bristow v. Daily Press. Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). Plaintiff himself admits that the low self esteem he felt from hearing that he was too "dumb" to get another job was the reason he was so miserable, and that he "should have quit years ago." (Alien Dep. at 231). It appears as though the childish and lewd drawings represented the final straw that gave him the strength to leave a job where he was unhappy. While one can certainly understand the difficulty in being rebuffed by one's co-workers or feeling singled-out by a supervisor, Plaintiff's circumstances simply are not characterized by the severity necessary to establish a successful constructive discharge claim.

 B. Count III: Illegal Retaliation

  Count III of Plaintiff's Complaint alleges that, in violation of Title VII, 42 U.S.C. § 2000e, MFS engaged in "adverse employment actions" in retaliation against Plaintiff's filing a claim with the EEOC and complaining to Management about the sexual harassment. (Compl. ¶¶ 37-39.) More specifically, Plaintiff argues that the destruction of part of his personnel file, the enhanced surveillance of his activities, and ultimately, his constructive discharge, violated § 2000e-3(a), which prohibits employers from discriminating against any employee for engaging in a protected activity.

  Preliminarily, as the moving party, it is the Defendant's burden to identify in the record evidence showing the absence of an issue of material fact. See Celotex. supra, 477 U.S. at 323. Defendant argues that, in light of the absence of any formal discipline of Plaintiff following the Page 19 filing of his complaint with the EEOC, heightened supervision, his supervisor's decision not to speak with Plaintiff, and co-workers' resentment towards him due to the heightened supervision, do not rise to the level of retaliation for which one can obtain relief. See Def.'s Reply Br. at 3-6 (quoting Plaintiff's deposition regarding his allegation of retaliation.) We agree and thus grant Defendant's motion for summary judgment with respect to Count III.

  Plaintiff must show three elements to establish a prima facie case of discriminatory retaliation under Title VII:

(1) []he engaged in activity protected by Title VII; (2) the employer took an adverse employment action against [him]; and
(3) there was a causal connection between [his] participation in the protected activity and the adverse employment action.
Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995). According to Plaintiff, Defendant increased its disciplinary write-ups and later destroyed part of Plaintiff's personnel file after he and his wife complained about the sexual harassment. (Compl. ¶¶ 39-40; Pl.'s Mem. in Opp. at 37.) Plaintiff further claims that after he filed his complaint with the EEOC, his co-workers rebuffed him and his supervisor increased his monitoring and supervision, often following him around. (See Alien Dep. at 130-37.)

  The prima facie analysis focuses on the second prong of the test, i.e., whether Defendant took an adverse employment action against Plaintiff.*fn6 We find that no reasonable jury could conclude that Defendant did take such action; thus, Plaintiff's case fails. Retaliation violates Page 20 Title VII "only if it alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his [or her] status as an employee." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997) (internal quotes omitted; brackets in original). Thus, not every unfortunate event or unwelcome action by an employer can constitute retaliation. Id. Plaintiff's allegations, while unfortunate and clearly unwelcome, do not rise to the level of illegal retaliation because they are insufficient to show an adverse employment action on the part of Defendant.

  The Third Circuit's findings in Robinson are instructive here, as Plaintiff's allegations are not as severe as those of the plaintiff in Robinson, who unsuccessfully argued that actions taken by her employer after she filed an EEOC complaint for sexual harassment qualified as an adverse employment action. There, the plaintiff claimed that, after she filed her complaint, her employer restricted her job responsibilities, failed to transfer her from her position under direct supervision of the man who had harassed her, and allowed her to be subjected to " `unsubstantiated oral reprimands' and `unnecessary derogatory comments.'" Additionally, she alleged that at times her supervisor ignored her after she refused his advances. Robinson, 120 F.3d at 1300. The Third Circuit found that, if believed, her claims simply were insufficient to constitute an adverse employment action in our circuit. Id. at 1300, 1301.

  Similarly, Alien's claims do not qualify as an adverse employment action. While Plaintiff may not have appreciated the comments he received from co-workers, they were not serious or tangible enough to change the conditions of his employment. Moreover, just as Robinson failed, Plaintiff has not set forth any evidence that his co-workers' response was motivated by his filing the claim. See e.g., id. at 1301-02 (rejecting the argument that the Page 21 plaintiff's restriction of computer access by a co-worker qualified as an adverse employment action because the plaintiff failed to offer any evidence that the co-worker acted in retaliation of the plaintiff's filing the EEOC complaint).

  Finally, Plaintiff fails to provide any evidence with respect to his allegations that, after he complained about the harassment, Management disciplined him more aggressively and then destroyed some of his personnel file. With the exception of the February 2001 incident (see Alien Dep. at 170), the latest date of any disciplinary write-up in the record is March 31, 1998, several years before the alleged harassment and, more importantly, Plaintiff's filing the EEOC complaint in March 2001. (See Pl.'s App. Ex. B at 56-59, 363-401, 365). More significantly, Plaintiff cannot identify one incident for which he was disciplined that was not present in his file (see Alien Dep. at 347-48).*fn7

  Finally, where the Comptroller, Klotz, saw the CEO removing documents from Plaintiff's file, Klotz indicates that Folck merely was consolidating two of Plaintiff's personnel files, and that Folck had informed him that he was removing the duplicates, as well as the report regarding the grinder incident that Plaintiff had requested that he remove. (Klotz Dep. at 30.) In light of the absence of any direct evidence of disciplinary reports removed from Plaintiff's personnel file and the undisputed legitimate explanation for removing some documents from the file, no reasonable jury could find that Defendant purposefully destroyed documents to downplay the alleged harassment and excessive scrutiny with which Plaintiff claims Defendant oversaw him in Page 22 retaliation of his complaints.

  Furthermore, Plaintiff appears to contest many of the disciplinary reports, which, significantly, were written several years before 2001. (See Alien Dep. at 276-339) (involving the parties' review of Plaintiff's personnel file). Thus, if anything, the disciplinary reports tend to imply that animus existed from very early in Plaintiff's lengthy tenure at MFS, instead of as a result of Plaintiff's complaints. As such, at trial, Plaintiff would not be able to establish a causal connection between the disciplinary activity and his complaints, the third prima facie element of illegal retaliation. See Robinson, 120 F.3d at 1301 (stating that the plaintiff could not establish a causal connection between the conduct she considered to be retaliatory and her complaint because it occurred before she filed the complaint).

  Finally, we find that the enhanced supervision by Plaintiff's supervisor and his decision not to speak to Plaintiff did not amount to an adverse employment action. While Bealer may have monitored him more closely than he had previously, Plaintiff provides no direct evidence that he actually did something harassing. Furthermore, "[w]e cannot expect, let alone obligate, [] supervisors to act cordially toward one who ha[s] sued them." Miller v. ALCOA, 679 F. Supp. 495, 505, aff'd., 856 F.2d 184 (3d Cir. 1988) (finding that the "snubbing" by the plaintiffs supervisors and co-workers did not constitute retaliation under Title VII).

  While not precedential, the Third Circuit's facts and findings in Buffa v. New Jersey State Dep't of Judiciary, No. 01-4094, 2003 WL 115948 (3d Cir. Jan. 14, 2003), present a persuasive parallel. There, the plaintiff argued that, in retaliation of her complaints regarding her work environment, she suffered an adverse employment action when her supervisor subjected her "to harassment, intense scrutiny and overly-critical supervision." Id. at **5. Rejecting the Page 23 plaintiff's argument, the Third Circuit reasoned that while it was possible for an employee to suffer an adverse employment action despite not having been fired, the plaintiff here "was never threatened with termination, demoted, urged to resign, or asked to assume lesser job responsibilities." As such, the plaintiff's allegations reflected, at most, "a poor working relationship with her superior." Id.

  We find no reason to distinguish Buffa from the case at hand. Even accepting the allegation that Defendant inappropriately disciplined Plaintiff without foundation in retaliation of his complaints, Plaintiff sets forth no evidence that his job responsibilities changed, that Defendant threatened to fire him, or that Defendant pressed him to resign. Moreover, the plaintiff in Buffa sets forth more evidence in her losing argument than does Plaintiff in his argument. She showed that her supervisor questioned her about her decisions and criticized her work attire. Id. Plaintiff here sets forth evidence not of negative treatment, but rather only that his supervisor monitored him more closely.

  "`[N]ot everything that makes an employee unhappy" qualifies as retaliation, for `otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.'" Robinson, 120 F.3d at 1300 (quoting Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996) (internal quotes omitted)). While the actions of Plaintiff's employer may not have made him happy, they do not rise to the level of an adverse employment action necessary for a valid retaliation claim. Because no reasonable jury could find that Defendant engaged in an adverse employment action, Plaintiff would not be able to establish a prima facie case of illegal retaliation at trial. Thus, with respect to Count III, summary judgment is granted. Page 24

 IV. DISMISSAL OF COUNT IV WITHOUT PREJUDICE

  Plaintiff, by stipulation, has withdrawn Count L, and, for the reasons stated above, we find it appropriate to enter judgment at this time on Plaintiff's remaining federal counts, Counts II and III. The lone remaining count in this matter is Plaintiff's allegation that Defendant's conduct violates the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951, et. seq. In the instant motion, Defendant did not request summary judgment with respect to this state claim, Count IV. As such, pursuant to 28 U.S.C. § 1367(c) and 42 Pa. Cons. Stat. § 5103, we will dismiss Count IV without prejudice to Plaintiff's right to pursue this matter in state court.

  The Third Circuit has stated that "if the federal count is subject to dismissal on a motion for summary judgment, then the district court should `ordinarily refrain from exercising jurisdiction (over the state law claims) in the absence of extraordinary circumstances.'" Weaver v. Marine Bank, 683 F.2d 744, 746 (quoting Tully v. Mott Supermarkets. Inc., 540 F.2d 187, 196 (3d Cir. 1976)) (citation omitted in original). No such "extraordinary circumstances" present themselves here.

  Moreover, both federal and state statutes provide for the transfer of state claims whose corresponding federal claims have been withdrawn or dismissed. See e.g., 28 U.S.C. § 1367(c)(3) ("the district courts may decline to exercise supplemental jurisdiction over [related state claims] if the district court has dismissed all claims over which it has original jurisdiction"); 42 Pa. Cons. Stat. § 5103(b) (allowing for the transfer to an appropriate state court of any matter brought in a court that lacks jurisdiction over the matter); see also Weaver, 683 F.2d at 747 (recognizing the authority of a federal court to transfer a case to state court through the state enabling statute, 42 U.S.C. § 5103). Page 25

  Thus, we will dismiss Count IV without prejudice to Plaintiff's right to pursue this matter in state court. Page 26

  ORDER

  AND NOW, this 30th day of January, 2004, after full consideration of Defendant's Motion for Summary Judgment, filed November 12, 2003, Plaintiff's response thereto, filed December 10, 2003, and Defendant's reply, filed December 24, 2003, it is hereby ORDERED that said motion is GRANTED, and judgment is entered in favor of Defendant on Counts II and III. We note that Count I has been withdrawn and these are the sole remaining federal counts in this case. Count IV, Plaintiff's state law count, is hereby DISMISSED without prejudice to Plaintiff's right to pursue this count in state court. This case is closed. Page 27

  ORDER

  AND NOW, this 30th day of January, 2004, judgment is entered in favor of Defendant and against Plaintiff on all federal claims.


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