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LAPENTA v. CITY OF PHILADELPHIA

July 20, 2004.

ROSA M. LAPENTA and MARIA RAMIREZ Plaintiffs,
v.
CITY OF PHILADELPHIA, CITY OF PHILADELPHIA, DEPARTMENT OF RECREATION, LUIS CABRERA, Defendants.



The opinion of the court was delivered by: CLIFFORD GREEN, Senior District Judge

MEMORANDUM

Presently pending is Defendants' Motion for Summary Judgment and Plaintiffs' Response in Opposition thereto. For the following reasons, Defendants' motion will be granted, in part and denied, in part.

BACKGROUND

  Plaintiffs filed a Complaint against Defendants which include the following counts: Count I for hostile environment sexual harassment and discrimination; Count II for quid pro quo sexual harassment and discrimination; Count III for civil rights violations of 42 U.S.C. § 1983 and 1985; Count IV for assault and battery; Count V for intentional infliction of emotional distress; Count VI against Defendant City of Philadelphia for Title VII, civil rights violations of 42 U.S.C. § 1983 and 1985, assault and battery, and intentional infliction of emotional distress.

  In short, Plaintiffs are females employed in Defendant City of Philadelphia's Department of Recreation. Both have been employed in the Department of Recreation since 1994. Defendant Cabrera was their immediate supervisor. In her Complaint and during her deposition testimony Plaintiff Lapenta claims that Defendant Cabrera, inter alia: told her he wanted to kiss her and her genitalia; that he wished to make love to her; during working hours made lewd comments about her appearance and sexuality; grabbed, kissed, and touched her legs; informed her that he had a gift for her and subsequently gave her a condom; and, chased her around their working area attempting to kiss her. (Comp. ¶¶ 26-42; Pls.' Answ., Exh. A, Lapenta Dep., at 67-90, 113, 122-127;). Plaintiff Ramirez similarly claims that Defendant Cabrera: described the appeal of his kisses to her; informed her that he desired to replace her husband; during working hours made lewd comments about her appearance and sexuality; attempted to grab her after she refused his offer of money in exchange for a kiss; threatened retaliation against her if she reported his conduct. (Compl. at ¶¶ 45-56; Pls.' Answ. Mot. Dis., Exh. F, Ramirez Dep., at 21-23, 39-40). Both Plaintiffs claim that Defendant Cabrera's unlawful behavior began sometime in 1999 and continued until they reported the behavior to his superiors in September 2001. Within one week after Plaintiffs reported their respective experiences to Defendant Cabrera's superiors he was transferred to another site and demoted. He has not had any further contact with Plaintiffs since he was removed.

  DISCUSSION

  Summary judgment shall be awarded "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(c). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2511 (1986). Once the moving party has carried the initial burden of showing that no genuine issue of material fact exists, the non-moving party cannot rely on conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact. See, Pastore v. Bell Telephone Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994). The nonmoving parties, instead, must establish the existence of every element essential to their case, based on the affidavits or by the depositions and admissions on file. See, id. (citing Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992)); see also, Fed.R.Civ.P. 56(e). The evidence presented must be viewed in the light most favorable to the non-moving party. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In the present matter, Defendants move for summary judgment on each of Plaintiffs' claims as well as on Plaintiffs' request for punitive damages.

  I. Hostile Work Environment

  In order to establish the existence of a hostile work environment, Plaintiffs must demonstrate that: (1) they suffered intentional discrimination because of their sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected Plaintiffs; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and, (5) the existence of employer respondeat superior liability. Kunin v. Sears Roebuck and Co., 175 F.3d 289, 293 (3d Cir. 1999). I conclude that Plaintiffs have raised genuine issues of material fact for each of these elements. Despite Defendants' assertions to the contrary, Plaintiffs' have presented sufficient evidence to withstand Defendants' motion for summary judgment on this count. Contrary to Defendants' assertions, Plaintiffs' deposition testimony cites numerous instances of sexually offensive and discriminatory conduct on Defendant Cabrera's part. (Pls.' Answ. Mot. Dis., Exh. A, Lapenta Dep., at 67-90, 113, 122-127; Pls.' Answ. Mot. Dis., Exh. F, Ramirez Dep., at 21-23, 39-40). The Court cannot conclude as a matter of law that the conduct was not sufficiently regular, pervasive, or sexually discriminatory so as not to create a sexually hostile work environment.

  The parties agree that the existence of respondeat superior liability for the City is subject to Ellerth/Faragher affirmative defense. (Def. Mot. at 32; Pl. Resp. at 12).

 
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.
Burlington Industries, Inc. v. Ellerth 524 U.S. 742,765, 118 S.Ct. 2257, 2271. The affirmative defense depends on the reasonableness of both the employer's and the plaintiff's preventative and remedial measures. Cardenas v. Massey, 269 F.3d 251 (3d Cir.) 2001. The Court concludes that Plaintiffs have raised genuine issues of material fact regarding the affirmative defense. Defendants have provided the Court with evidence that the City has a sexual harassment policy and that Defendant Carbrera attended a one half day training seminar on sexual harassment in September 1992, almost ten years prior to the alleged harassment. (Defs.' Mot. Summ. J., Exh. 8, 9). Plaintiff's contend this was insufficient as a preventive measure. Defendant's contend, however, that Plaintiffs did not take adequate preventive measures in failing to timely report Defendant Cabrera's actions. Plaintiffs respond that they did not report the harassing behavior due to fear of retaliation from Defendant Cabrera. The City had a clearly established sexual harassment policy and required Defendant Cabrera to attend a sexual harassment seminar. This was reasonable preventive care. The trier of fact, however, should determine whether Plaintiffs' failure to avail themselves of the appropriate and available complaint procedures was reasonable given their asserted fear of reprisal. Accordingly, summary judgment cannot be granted on Plaintiffs' hostile work environment claim. II. Quid Pro Quo Sexual Harassment

  As Defendants correctly assert, Plaintiffs have failed to produce evidence of quid pro quo sexual harassment. In order to prevail upon such a claim, Plaintiffs must provide evidence that Defendants took some form of adverse employment action against them. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1298 (3d Cir. 1997). Plaintiffs have failed to provide such evidence and concede that they have no argument in response to Defendants' averments that Plaintiffs have so failed. (See, Pl. Resp. to Summ. J. at 13, n. 1). Moreover, Plaintiffs admit that they have not suffered any adverse employment action. (Pl. Answ. at 10), Therefore, summary judgment will be granted on their claims for quid pro quo sexual harassment.

  III. Civil Rights Violations of § 1983

  In Count III of Plaintiffs' Complaint, they assert that Defendants' actions constitute a denial of equal protection of the law in violation of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983. Moreover, Plaintiffs contend that Defendants acted in concert to deprive Plaintiffs of their federal and state civil rights. Plaintiff's further maintain that they suffered, inter alia: the loss of their reputations: emotional distress; past and future wages; and, the loss of employment and promotion. In Count VI of the Complaint, which is asserted against Defendant the City of Philadelphia, Plaintiffs allege that the City has a de facto policy or custom of permitting ...


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