United States District Court, E.D. Pennsylvania
April 30, 2004.
MARIA A. OLSEN, Plaintiff,
BOROUGH OF NEW HOLLAND, NEW HOLLAND POLICE DEPARTMENT, and EDWARD L. SPRECHER, Chief of Police, Defendants
The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge
This matter is before the court on Defendants' Motion for Summary
Judgment on All Plaintiff's Claims, which motion was filed September 15,
2003. For the reasons expressed below, we conclude that defendants are
entitled to judgment as a matter of law on all counts of plaintiff's
Complaint. Therefore, we grant defendants' motion and enter judgment in favor of defendants. PROCEDURAL BACKGROUND
This civil action arises from plaintiff's employment by the New Holland
Police Department. On November 18, 2002 plaintiff filed a Complaint
against defendants alleging violations of: (1) Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 ("Title VII"); (2) the
Americans with Disabilities Act, 42 U.S.C. § 12101-12213 ("ADA"); and
(3) the Pennsylvania Human Relations Act, Act of December 20, 1991, P.L.
414, No. 51, §§ 1-11, as amended, 43 P.S. §§ 951-963 ("PHRA"). On
September 15, 2003 plaintiff moved for summary judgment on all counts of
For the reasons which follow, we now grant defendants' motion for
summary judgment and enter judgment in defendants' favor on all counts of
STANDARD FOR SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure provides that
judgment shall be rendered where it is shown 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). Where a moving
defendant does not bear the burden of persuasion at trial, he need only point out that
"there is an absence of evidence to support the nonmoving party's case."
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548,
2554, 91 L.Ed.2d 265, 275 (1986).
Moreover, a non-moving party cannot establish that there exist genuine
issues of material fact on mere allegations. The non-movant with a burden
of proof must produce a sufficient evidentiary basis from which a
reasonable jury could find in favor of the non-movant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. 2505,
2510-2511, 91 L.Ed.2d 202, 212 (1986).
FINDINGS OF FACT
Based upon the pleadings, record papers, depositions and exhibits of
the parties, the undersigned makes the following findings of fact:
1. Plaintiff was hired as a police officer at the Borough of New
Holland in 1989.*fn1
2. Plaintiff utilized both the Department's unisex locker room with restrooms, showers and a changing area and the
public ladies' restroom.*fn2 3. In the early 1990s plaintiff reported to her supervisor, Chief
Edward L. Sprecher, that someone had glued the lock on her desk shut and
glued her coffee mug to her desk.*fn3
4. On January 2, 1993 plaintiff notified Chief Sprecher that someone
altered a training request form submitted by plaintiff to read "I will
perform oral sex on demand."*fn4
5. On or about January 30, 2000 plaintiff reported to defendants a work
injury caused by wearing the traditional police gun belt.*fn5
6. Plaintiff took a workers' compensation leave of absence from May
2000 to August 2000.*fn6
7. During her leave of absence, plaintiff and Chief Sprecher discussed
alternatives to plaintiff's gun belt.*fn7 8. Defendants fitted plaintiff with a lighter automatic weapon made of
plastic.*fn8 9. Additionally, Chief Sprecher ordered a smaller holster for
plaintiff's use with her own, smaller, off-duty weapon.*fn9
10. While awaiting the arrival of plaintiff's smaller holster,
plaintiff was assigned to work the desk for the absent police
11. During plaintiff's leave of absence, defendants offered plaintiff a
"gate keeper" position at the community pool in July 2000, which position
12. Wearing the smaller holster and the lighter gun did not satisfy
plaintiff. The parties discussed with plaintiff's doctor, Dr. Zartman,
fitting plaintiff with a tactical mesh vest to carry her required equipment.*fn12
13. Plaintiff returned to work on August 16, 2000 wearing the tactical
mesh vest. At some point after returning to work, plaintiff began to
alternate her use of the tactical mesh vest and the gun belt.*fn13 14. On November 16, 2000 plaintiff informed Chief Sprecher that she
could no longer alternate between the gun belt and the tactical vest and
that she needed to see her doctor.*fn14
15. On February 1, 2001 plaintiff was assigned to work as a light duty
officer, a position that defendants created to accommodate plaintiff's
hip injury. The light duty officer position was a desk position in which
plaintiff was responsible for receiving complaints by telephone call or
walk-in, for general clerical work assigned by the Chief of Police, for
security, for the completion of Department-required forms, and for
booking, fingerprinting and photographing arrestees.*fn15
16. On November 11, 2001 plaintiff submitted a note from her doctor,
Dr. Wolfe, to Chief Sprecher advising that plaintiff could not work for
three weeks. On November 29, 2001 plaintiff submitted a second note from
Dr. Wolfe advising her not to return to work for another month as a
result of stress related to her working conditions.*fn16
17. On May 14, 2002 plaintiff informed Chief Sprecher that Dr. Wolfe
had cleared her to return to work.*fn17 18. Defendants then offered plaintiff a position at the community pool
as soon as she could return to work, which position plaintiff again
19. On August 16, 2002 plaintiff received a Right to Sue Letter from
the Equal Employment Opportunities Commission ("EEOC").*fn19
20. On September 30, 2002 plaintiff took another month off from work on
the advice of a Dr. McGee.*fn20
21. On October 28, 2002 Dr. Wolfe ordered plaintiff to remain off work
until January 1, 2003 because she suffered from work-related
22. On January 8, 2003 plaintiff presented Chief Sprecher with another
note from Dr. Wolfe advising her not to return to work. Plaintiff has not
returned to work.*fn22
CONCLUSIONS OF LAW
Applying the summary judgment standard to the undisputed facts recited above, we make the following conclusions
1. Plaintiff has presented no evidence from which a reasonable jury
could find a hostile work environment existing after 1993.*fn23
2. Plaintiff has presented no evidence from which a reasonable jury
could find that a decision-maker of the Borough of New Holland had a
discriminatory bias against plaintiff.
3. Plaintiff has presented no evidence from which a reasonable jury
could find that she was qualified for her position as patrol officer.
4. Plaintiff has presented no evidence from which a reasonable jury
could find a causal connection between any protected activity and any
alleged adverse employment action.
5. Plaintiff's hip injury has not substantially limited her ability to
perform any major life activity.
6. Plaintiff has presented no evidence from which a reasonable jury could find that defendants regarded her as
I. Counts I and III Title VII of the Civil Rights Act
of 1964 and the Pennsylvania Human Relations Act
Defendants challenge Counts I and III of plaintiff's Complaint, wherein
plaintiff alleges the following violations of Title VII and the PHRA: (1)
a hostile work environment; (2) gender discrimination; and (3)
retaliation. Specifically, defendants argue that Counts I and III fail as
a matter of law because: (a) her hostile work environment claim is
time-barred; (b) plaintiff was not "qualified" for her position; (c)
plaintiff can present no evidence of pretext; and (d) plaintiff can
present no evidence of retaliation.
Title VII and the PHRA make it unlawful for an employer to discriminate
against an employee based on the "individual's race, color, religion,
sex, or national origin". 42 U.S.C. § 2000e-2.*fn24 For the reasons
stated below, we find that plaintiff has failed to state a Title VII or
PHRA claim as a matter of law. Thus, we enter judgment in defendants'
favor and against plaintiff on Counts I and III of the Complaint.
A. Hostile Work Environment
An employer may violate Title VII or the PHRA by creating an
intimidating, hostile or offensive working environment. Weston v.
Pennsylvania, 251 F.3d 420, 425-426 (3d Cir. 2001). In a hostile
work environment case, the plaintiff must demonstrate harassment so
severe or pervasive that it alters the conditions of plaintiff's
employment and creates an abusive environment. Id. at 426.
To succeed on a hostile working environment claim, a plaintiff must
prove the following five factors:
(1) the employee suffered intentional
discrimination because of [her] sex; (2) the
discrimination was pervasive and regular; (3) the
discrimination detrimentally affected the
plaintiff; (4) the discrimination would
detrimentally affect a reasonable person of the
same sex in that position; and (5) the existence
of respondeat superior liability.
Andrews v. City of Philadelphia, 895 F.2d 1469
, 1482 (3d
Cir. 1990) (citations omitted).
To the extent that plaintiff has presented evidence of sexually
harassing behavior, each such arguably sexual incident occurred
approximately ten years prior to plaintiff's receipt of the August 16,
2002 Right to Sue Letter. Under Title VII, a plaintiff must file a charge
of discrimination with the EEOC within 180 days of the unlawful employment practice.
42 U.S.C. § 2000e-5(e)(1). Because more than 180 days passed between
these incidents and plaintiff's filing a charge of sexual harassment with
the EEOC, these claims are time-barred.*fn25 To the extent Counts I and
III allege a hostile working environment, those claims are dismissed as
B. Gender Discrimination
To succeed on a gender discrimination claim, plaintiff can proceed
under two methods. Foster v. New Castle Area School District,
No. 03-CV-2106, 2004 U.S. App. LEXIS 7447, at *5 (3d Cir. January 30,
2004) (citing Armbruster v. Unisys Corporation, 32 F.3d 768,
778-779 (3d Cir. 1994)). The two methods are described as follows:
Under the Price Waterhouse analysis, a
plaintiff presents direct evidence that a
decision-maker had a discriminatory bias.
Price Waterhouse v. Hopkins,
490 U.S. 228, 244-246, 104 L.Ed.2d 268, 109 S.Ct. 1775
(1989). Under McDonnell Douglas, a
plaintiff makes out a prima
facie case of discrimination, and then
the burden shifts to the defendant to show a non-discriminatory
reason for its decision. McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802,
36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). The burden
then shifts back to the plaintiff to show, with
additional evidence, that this non-discriminatory
reason was pretextual. Id. at 804.
Id. at *5-6.
Plaintiff has presented no direct evidence to prove that a
decision-maker at the Borough of New Holland had a discriminatory bias
under the Price Waterhouse analysis. Therefore, plaintiff must
prove her gender discrimination claim under the McDonnell
Douglas burden-shifting analysis. As explained below, we find that
plaintiff cannot prove a prima facie case of gender
discrimination against defendants.
A prima facie case of gender discrimination under
the McDonnell Douglas analysis requires a showing that: (1)
plaintiff was a member of a protected class; (2) she was qualified for
the position sought; and (3) nonmembers of the protected class were
treated more favorably. Rossi v. New Jersey, 39 Fed. Appx. 706,
709 n.8 (3d Cir. 2002) (citing Goosby v. Johnson & Johnson
Medical, Inc., 228 F.3d 313, 318 (3d Cir. 2002)).
Defendants argue that plaintiff cannot prove that she was qualified for
her position. Plaintiff admitted at her deposition that she could not
perform the essential functions of her position as a patrol officer because she could not wear the
equipment belt with or without accommodation.*fn26 Thus, we find that
plaintiff was not qualified for her position as patrol officer. Because
plaintiff has failed to provide sufficient evidence to prove a
prima facie case of gender discrimination, we find
that defendants are entitled to summary judgment and dismiss plaintiff's
gender discrimination claims.*fn27
To succeed on a Title VII retaliation claim, plaintiff must prove that: "(1) she engaged in a protected
activity; (2) the employer took an adverse action against her; and (3)
there is a causal link between the activity and the adverse action."
Sherrod v. Philadelphia Gas Works, 57 Fed. Appx. 68, 77 (3d
Cir. 2003) (citing Charlton v. Paramus Board of Education,
25 F.3d 194, 201 (3d Cir. 1994)). Plaintiff has alleged facts sufficient to
sustain the first element of a retaliation claim. She engaged in a
protected activity when she filed her complaint with the EEOC. We make no
finding concerning the existence of any adverse employment action against
plaintiff because defendants have not raised this issue. However, we find
that plaintiff has presented no evidence from which a reasonable jury
could find that there is a causal link between plaintiff's protected
activity and any adverse employment action.
Plaintiff must do more than simply argue that such a causal connection
exists. See Anderson, 477 U.S. at 249-250. The only
evidence before this court supports a finding that plaintiff never
returned to work after presenting Chief Sprecher with a note from her
doctor on January 8, 2003 which note advised plaintiff not to return to
work. We find no evidence in the record before us of any causal
connection between plaintiff's protected activity and any adverse employment action taken by defendants sufficient to surmount
plaintiff's burden in opposing defendants' motion for summary judgment.
Thus, we find that plaintiff cannot present evidence sufficient to
support her claim against defendants for retaliation. Therefore, we grant
judgment in defendants' favor on Counts I and III of the Complaint.
II. Count II Americans with Disabilities Act
Defendants argue that plaintiff was neither disabled, nor perceived as
disabled, at the time she left her position at the Borough of New
Holland. Thus, they conclude that plaintiff is unable to make a
prima facie case against defendants for violating the
Americans with Disabilities Act. We agree.
To make a prima facie case under the ADA, plaintiff
must prove the following three elements: (1) she was disabled within the
meaning of the ADA; (2) she was qualified for the position; and (3) she
suffered an adverse employment action because of her disability.
Deane v. Pocono Medical Center, 142 F.3d 138, 142 (3d Cir.
1998). The ADA defines a disability as "(A) a physical or mental
impairment that substantially limits one or more of the major life
activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."
42 U.S.C. § 12102(2).
Defendants agree that plaintiff's hip injury qualifies as a physical
impairment under the ADA, but argues that there is no evidence that such
injury substantially limits plaintiff's major life activities.
See Sutton v. United Airlines, 527 U.S. 471, 482,
119 S.Ct. 2139, 2146, 144 L.Ed.2d 450, 462 (1999). A "major life activity"
is defined as encompassing such functions as "caring for oneself,
performing manual tasks, walking, seeing, hearing speaking, breathing,
and working." 29 C.F.R. § 1630.2(h)(2)(I).
Plaintiff alleges that she is limited in her abilities to work, to
partake in various recreational activities and to sit for prolonged
periods of time.*fn28 Initially, we note that recreational activities do
not constitute major life activities under the ADA. Kirkendall v.
United Parcel Service, Inc., 964 F. Supp. 106, 110 (W.D.N.Y. 1997).
Moreover, we find that plaintiff has presented no evidence to support her
allegation that she is unable to sit for prolonged periods of time. Thus,
we find that plaintiff has presented no evidence from which a reasonable jury could find that any limitations on her
recreational activities or ability to sit demonstrate a physical
impairment under the ADA.
Concerning the major life activity of working, "[t]he term
substantially limits means significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable training,
skills and abilities." 29 C.F.R. § 1630.2(j)(3)(I). According to
plaintiff, the only thing that she could not do in her position as patrol
officer was to wear a traditional gun belt.*fn29 And according to
Plaintiff's Vocational Assessment, plaintiff is able to work as a private
detective, security guard, police and sheriff patrol officer and
detective and criminal investigator.
On this basis, we find that plaintiff's hip injury does not prevent her
from performing a broad class of jobs for which she is skilled and
trained. Thus, we find that plaintiff's ability to work is not
substantially limited by her hip injury. Moreover, we find that because
plaintiff's hip injury has not substantially limited her ability to
perform any major life activity, plaintiff is not disabled under method "A" of proving a disability under the ADA.
Plaintiff next urges that if she were not disabled under the ADA,
defendants nonetheless regarded her as disabled, under method "C" of
proving a disability under the ADA. To prove that defendants regarded
plaintiff as disabled, plaintiff must prove that defendants: (1)
mistakenly believed that plaintiff has a physical impairment that
substantially limits one or more major life activities; or (2) mistakenly
believed that an actual, nonlimiting impairment substantially limits one
or more major life activities. Sutton, 527 U.S. at 489. The fact that an employer is aware of an employee's disability, or even
that the employer made accommodations for a disabled employee, is
insufficient to demonstrate that the employer regarded an employee as
disabled. Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir.
1996); Sharkey v. Federal Express, No. 98-CV-3351, 2001 U.S.
Dist. LEXIS 72, at *21-22 (E.D. Pa. January 9, 2001); Popko v.
Pennsylvania State University, 994 F. Supp. 293, 300 (M.D.
Pa. 1998). To this end, plaintiff presents absolutely no evidence that
defendants regarded her as disabled. Thus, we find that no reasonable
jury could find that defendants regarded her as disabled. Therefore,
plaintiff cannot establish the first element in her prima
facie case under the ADA, and that claim must be dismissed.
For all the foregoing reasons, we grant defendants' motion for summary
judgment and enter judgment in favor of defendants on all counts of
NOW, this 30th day of April 2004, upon consideration of Defendants'
Motion for Summary Judgment on All Plaintiff's Claims, which motion was
filed September 15, 2003; Plaintiff's Response in Opposition to
Defendants' Motion for Summary Judgment, which response was filed October
17, 2003; and Defendant's Reply to Plaintiff's Response in Opposition to
Motion for Summary Judgment, which reply was filed November 3, 2003; and
for the reasons expressed in the accompanying Opinion,
IT IS ORDERED that defendants' motion is granted.
IT IS FURTHER ORDERED that judgment is entered in favor of
defendants and against plaintiff on the Complaint.