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LAPENTA v. CITY OF PHILADELPHIA

United States District Court, E.D. Pennsylvania


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 supervisors to sexually harass female employees, in that it failed to properly train Defendant Cabrera and was therefore deliberately indifferent to the rights of City employees.

  A. Equal Protection

  In order to prevail on their equal protection claims, Plaintiffs must demonstrate that they were subjected to "purposeful discrimination" because of their sex. Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992). See also, Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). Regarding Defendant Cabrera, the Court finds that Plaintiffs have provided the Court with sufficient evidence to survive a motion for summary judgment on this issue. Again Plaintiffs have presented evidence of numerous sexually offensive comments, suggestions, touchings, and threats. (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). Viewing the evidence in the light most favorable to Plaintiffs, a fact finder could infer that the comments were purposeful and that the treatment Plaintiffs received from Defendant Cabrera was due to their sex. Therefore, Defendant Cabrera's motion for summary judgment on Plaintiff's § 1983 equal protection claim will be denied. However, the City, as a municipality, is not liable through respondeat superior for the constitutional torts of its employees. Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978). Municipal liability attaches only "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury" complained of. Id. at 694, 98 S.Ct. at 2037. As the Court of Appeals for the Third Circuit stated in Andrews:

A government policy or custom can be established in one of two ways. Policy is made when a decision maker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. A course of conduct is considered to be a "custom" when, though not authorized by law, such practices of state officials [are] so permanent and well-settled as to virtually constitute law.
895 F.2d at 1480 (quotations omitted). Plaintiffs' claims against the City are based upon the theory that the City failed to train Defendant Cabrera and that this failure was tantamount to deliberate indifference with respect to the rights of City employees. A failure to train must amount to deliberate indifference to the rights of persons with whom the offender come into contact. City of Canton, Ohio v. Harris, 489 U.S. 377, 388, 109 S.Ct. 1197, 1204 (1989). In order to survive summary judgment on a failure to train theory, Plaintiffs must demonstrate that the need for more or different training was so obvious and "so likely to lead to the violation of constitutional rights that the policymaker's failure to respond amounts to deliberate indifference." Brown v. Muhlenberg Township, 269 F.3d 205, 215 (3d Cir. 2001) (emphasis added).

  The evidence presented does not demonstrate that the City was deliberately indifferent to protecting its employees from sexual harassment nor does the evidence demonstrate that there was a policy or custom of turning a blind eye to supervisory sexual harassment and deliberate indifference to its employees' rights. The evidence on summary judgment is insufficient to permit an inference that the training received by Defendant Cabrera was inadequate or that the lack of additional training was a substantial factor in his behavior. Plaintiffs have therefore failed to present evidence establishing a policy or custom of failure to train. Defendant the City of Philadelphia's motion for summary judgment on Plaintiffs' equal protection claim will be granted.

  B. Loss of Reputation

  The parties agree that individuals have a protectable interest in their reputations and that when said reputation is at stake due to government action, both notice and an opportunity to be heard are essential. See, Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 508 (1971). However, as Defendants correctly point out, Plaintiffs have failed, on summary judgment, to produce evidence that their reputations were harmed in any fashion. Plaintiff Lapenta, on summary judgment, does not argue nor provide any evidence regarding a loss of reputation claim. Plaintiff Ramirez merely points to general comments regarding Defendant Cabrera no longer being employed at his former Center (Pls.' Answ. Mot. Dis., Exh. F, Ramirez Dep., at 57-61). She cannot attribute those comments to Defendant Cabrera, nor did she provide evidence of harmful or detrimental statements about her character or reputation attributable to Defendant Cabrera. Consequently, Defendants' motions for summary judgment on Plaintiffs' loss of reputation claims will be granted. IV. Intentional Infliction of Emotional Distress

  In order to survive a motion for summary judgment on their claim of intentional infliction of emotional distress, Plaintiffs must demonstrate that the conduct complained of is extreme or clearly outrageous. The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Buczek v. First National Bank of Mifflintown, 531 A.2d 1122, 1125 (Pa. Super. 1987). It is not enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that this conduct has been characterized by `malice,' or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Id. In Cox v. Keystone Carbon, 861 F.2d 390, 395 (3rd. Cir. 1988), the Third Circuit noted that, "it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." The Third Circuit has also held that sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for the intentional infliction of emotional distress. Id.; Hoy v. Angelone, 720 A.2d 765 (Pa. 1998). It has gone on to note that the only instances in which courts applying Pennsylvania law have found conduct outrageous in the employment context is where an employer engaged in both sexual harassment and other retaliatory behavior against an employee. See, Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (1990). The Pennsylvania Supreme Court has noted that retaliatory conduct, although not determinative, is a critical factor to be heavily weighed when assessing whether conduct should be considered extreme and outrageous in an employment context. Hoy, 720 A.2d at 755.

  Although Plaintiffs have provided the Court with sufficient evidence to support their hostile work environment claims, they have not provided the court with evidence of extreme or outrageous conduct as required under Pennsylvania law. As is required to survive a motion for summary judgment, Plaintiffs must provide evidence of extreme and outrageous conduct. Having failed to do so, Defendants' motion for summary judgment on this claim will be granted.

  V. Assault and Battery

  Defendants correctly point out that Plaintiffs' claims for assault and battery are barred by the Pennsylvania Workers' Compensation Act, Workers compensation, PA ST 77 P.S. §§ 22. Plaintiffs have not responded to Defendants' arguments on this issue nor provided the Court with law or evidence that they are entitled to damages on these claims. Defendant's motion for summary judgment on this issue be will be granted.

  VI. Punitive Damages

  Punitive damages are available in claims under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. Punitive damages are limited, however, to cases in which the employer has engaged in intentional discrimination and has done so "with malice or with reckless indifference to the federally protected rights of an aggrieved individual. Kolstad v. American Dental Ass'n, 527 U.S. 527, 119 S.Ct. 2118, 2122 (1999). Despite Defendants' assertions to the contrary, the United States Supreme Court expressly rejected the notion that punitive damages are only awardable where the conduct complained of is especially egregious. Kolstad at 527 U.S. 545; 119 S.Ct. at 2129. However, in Kolstad the Court also held that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's "good-faith efforts to comply with Title VII". Id. Accordingly, the Court concludes that punitive damages are awardable, given a sufficient showing at trial, against Defendant Cabrera. The Court concludes that punitive damages may not be awarded against the City of Philadelphia since it has made good faith efforts to comply with Title VII by establishing and distributing an anti-harassment policy, and also by requiring Defendant Cabrera's attendance at a sexual harassment seminar. (Defs.' Mot. Summ. J., Exh. 8, 9).

  CONCLUSION

  For the foregoing reasons, Defendants' Motion for Summary Judgment will be granted, in part, and denied, in part.

  An appropriate order follows. ORDER

  AND NOW, this day of July 2004, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is GRANTED, in part, and DENIED, in part. IT IS FURTHER ORDERED that:

  1. Defendants' Motion for Summary Judgment on Count I, Plaintiffs' claim for hostile work environment sexual harassment is DENIED;

  2. Defendants' Motion for Summary Judgment on Count II, Plaintiffs' claim for quid pro quo sexual harassment is GRANTED;

  3. Defendant Cabrera's Motion for Summary Judgment on Count III, Plaintiff's claim for violations of 42 U.S.C. § 1983 and 1985, is GRANTED, in part, and DENIED, in part. Defendant Cabrera's Motion for Summary Judgment on Plaintiffs' loss of reputation claim is GRANTED. Defendant Cabrera's Motion for Summary Judgment on Plaintiffs' equal protection claim is DENIED;

  4. Defendants' Motion for Summary Judgment on Count IV, Plaintiffs' claim for Assault and Battery is GRANTED;

  5. Defendants' Motion for Summary Judgment on Count V, Plaintiffs' claim for intentional infliction of emotional distress, is GRANTED; 6. Defendant the City of Philadelphia's Motion for Summary Judgment on Count VI, Plaintiffs' claim against the City of Philadelphia for 42 U.S.C. § 1983 and 1985, assault, battery and intentional infliction of emotional distress is GRANTED;

  7. Defendant Cabrera's Motion for Summary Judgment against an award of punitive damages is DENIED;

  8. Defendant the City of Philadelphia's Motion for Summary Judgment against an award of punitive damages is GRANTED.

20040720

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