United States District Court, W.D. Pennsylvania
November 22, 2005.
JUDITH BENNY, Plaintiff,
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT SOMERSET, Defendant.
The opinion of the court was delivered by: KIM GIBSON, District Judge
MEMORANDUM OPINION AND ORDER
This case comes before the Court on the Commonwealth of
Pennsylvania, Department of Corrections, State Correctional
Institution at Somerset's (hereinafter "Defendant") Motion for
Summary Judgment (Document No. 20). Specifically, pursuant to
Federal Rule of Civil Procedure 56 the Defendant has moved to
dismiss Count III (sexual discrimination claim) of Judith Benny's
(hereinafter "Plaintiff") Complaint arguing, inter alia, that
no genuine issues as to any material facts exist in the case sub
judice. (Document No. 20). The Defendant's Motion for Summary
Judgment will be granted as to Count III of the Plaintiff's
Complaint for the following reasons.
Jurisdiction of the above-captioned civil action is proper in
the United States District Court for the Western District of
Pennsylvania in that the Plaintiff's cause of action arises under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000(e),
et. seq. Jurisdiction is invoked pursuant to
28 U.S.C.S. § 1343(4) and 42 U.S.C.S. § 2000(e)-5(f), and a right to sue letter
was issued by the U.S. Department of Justice on March 4, 2003 and
received on March 10, 2003. Venue in this Court for the case sub judice is proper
pursuant to 28 U.S.C.S. § 1391(b), because the claim arose in
this judicial district, and pursuant to
28 U.S.C.S. § 2000(e)-5(f)(3), as the alleged unlawful employment practice was
committed in this judicial district.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence of record, as uncontroverted or otherwise taken in
the light most favorable to the Plaintiff is as follows:
Beginning on or about February 1998, the Plaintiff began her
employment with the Defendant as a food service
instructor.*fn1 (Document No. 25). During her employment,
the Plaintiff avers that she has performed her duties in a
satisfactory manner. Id. However, the Plaintiff alleges that at
various times she has been subjected to unwelcome sexual
overtures by male members of the Defendant's management. Id.
Additionally, the Plaintiff claims that she has "been subjected
to a consistent and pervasive pattern of discriminatory and
oppressive treatment at the hand of Defendant's agents because
she is a woman." Id.
Plaintiff asserts that she complained of the sexual
discrimination to superior officials of Defendant. Id. Indeed,
the Plaintiff argues that the Defendant was aware of the
behaviors of male management officials but failed to take action
and condoned the offensive behavior. Id. The offensive behavior
exhibited by the male employees were intimidating to the
Plaintiff, and she argues that the behavior would have been
offensive to any reasonable woman under the same circumstances.
Id. The uncontested offensive behavior documented by the Plaintiff
and brought to the attention of her superiors are the following
(1) 12/26/97, [a male co-worker] yelled `you don't
give a F*ck about no one but your own F*cking self' . . .
[and] slammed the door closed[;]
(2) On 05/02/98 I[t] was stated who was I blowing
again in reference to the overtime issue[;]
(3) On 05/08/98 `The remark was made who's dick am I
blowing to get all the overtime[;]
(4) On July 25 at 2:15 Sat., `They always complain
about patting people down. They always say there are
to [sic] many women in here.'
(5) [A male co-worker] made bets with other male
employees regarding Plaintiff and sexual acts.
(Document No. 25, Exhibit B, pp. 5-6). The Plaintiff argues that
these instances in conjunction with the alleged pattern of
conduct displayed by the Defendant set forth a clear pattern of
sexual discrimination. (Document No. 25). In fact, according to
the Plaintiff, the entire record in the case sub judice is
replete with examples of a continuing pattern of sexual
discrimination. Id. In particular the Plaintiff alleges that a
male co-worker, Donald Lepley, displayed egregious conduct toward
the Plaintiff. Id.
The Court shall render 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 a judgment as a matter of law." Fed.R.Civ.P.
56(c). An issue is "genuine" only if there is a sufficient
evidentiary basis on which a reasonable jury could find for the
non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual
dispute is "material" only if it might affect the outcome of the
suit under governing law. Id. at 248, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202. All inferences must be drawn, and all
doubts resolved, in favor of the non-moving party. United States
v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176
(1962). On a motion for summary judgment, the moving party bears
the initial burden of identifying those portions of the record
that it believes 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). To defeat summary judgment, the non-moving
party must respond with facts of record that contradict the facts
identified by the movant and would support a favorable jury
finding. Id. at 321 n. 3, 477 U.S. 317, 106 S.Ct. 2548,
91 L.Ed.2d 265 (quoting Fed.R.Civ.P. 56(e)). The party opposing
summary judgment may not rest upon mere allegations or denials,
but must set forth specific facts, presenting affirmative
evidence showing that there is a genuine issue of material fact
for trial. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505,
91 L.Ed.2d 202.
The parties must also adhere to the McDonnell Douglas scheme
of shifting burdens of production, which controls the analysis of
individual disparate treatment claims brought under Title VII and
the PHRA. See generally McDonnell Douglass Corp. v. Green,
411 U.S. 792, 800-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and
clarified in Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Specifically,
disparate treatment claims follow a well-established three-step
"burden-shifting" approach. See McDonnell Douglas Corp. v.
Initially, a non-movant, generally the plaintiff, must
establish a prima facie case of discrimination or retaliation.
Then, the movant or defendant must rebut an inference of
wrongdoing with evidence of a legitimate, non-discriminatory,
non-retaliatory reason for the action taken. Weston v.
Commonwealth of Pennsylvania, 251 F.3d 420, 432 (3d Cir. 2001).
If a defendant successfully meets this burden in a discrimination or
retaliation case, then the burden of production shifts back to
the plaintiff to present evidence of pretext, or show that the
discrimination played a role in the defendant's decision-making,
and the discrimination had a determinative effect on the outcome.
Weston, 251 F.3d at 432. Noting the inimical consequences of
discrimination in the workplace, the Third Circuit cautions
district courts against granting summary judgment to an employer
when its intent is at issue, particularly in discrimination
cases. Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313,
321 (3d Cir. 2000).
TITLE VII CLAIMS
Pursuant to the statutory language of Title VII, it is unlawful
for any employer "to discriminate against any individual with
respect to his [or her] compensation, terms, conditions, or
privileges of employment, because of such individual's . . .
sex." 42 U.S.C. § 2000e-2(a)(1). A sexual discrimination claim
under Title VII must establish that the sexual harassment was
either so pervasive as to create a hostile work environment and
change the conditions of employment, or if the sexual harassment
constituted a quid pro quo sexual discrimination. In the case
sub judice, the Plaintiff alleges that the Defendant committed
sexual discrimination and violated Title VII by creating a
hostile work environment.
Hostile Work Environment Sexual Harassment
To be actionable as a Title VII hostile work environment sexual
harassment claim, the Supreme Court has made clear that although
the statute mentions specific employment decisions with immediate
consequences, the scope of the prohibition is not limited to
economic or tangible discrimination and that it covers more than
`terms' and `conditions' in the narrow contractual sense."
Faragher v. City of Boca Raton, 524 U.S. 775, 786,
118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal citations and quotations omitted). Indeed,
sexual harassment so "severe or pervasive" as to "alter the
conditions of [the victim's] employment and create an abusive
working environment" violates Title VII as well. Clark County
School District v. Breedon, 532 U.S. 268, 270, 121 S.Ct. 1508,
149 L.Ed.2d 509 (2001) (citing Faragher, 524 US. at 786,
118 S.Ct. 2275, 141 L.Ed.2d 662 (quoting Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49
(1986)). This standard requires an objectively hostile or abusive
environment such that a reasonable person would find it hostile
or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The victim's subjective
perception that the environment was abusive is also a requisite
element of a hostile work environment sexual harassment claim.
In Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir.
1990), the Third Circuit set forth a four part test for
determining whether a sexually hostile work environment exists. A
plaintiff must prove that (1) the employee suffered an
intentional discrimination because of her sex; (2) the
discrimination was pervasive and regular; (3) the discrimination
detrimentally affected the employee; and (4) the discrimination
would detrimentally affect a reasonable person of the same sex in
that position. Andrews, 895 F.2d at 1482. Furthermore, the
Third Circuit directs that "a discrimination analysis must
concentrate not on individual incidents, but on the overall
scenario." Id. at 1484. Accordingly, district courts assess a
hostile work environment by observing "the frequency of the
discriminatory conduct, its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance." Faragher, 524 U.S. at 787-88, 118 S.Ct. 2275,
141 L.Ed.2d 662. Based upon the record in the case sub judice, the
Court determines that the Plaintiff has failed to set forth a genuine issue of material fact on her
claim of a sexually hostile work environment in that she has
failed to establish a prima facie case of discrimination.
1. Intentional Discrimination Because of Sex
In order to constitute intentional discrimination because of
sex, cases that involve "sexual propositions, innuendo,
pornographic materials, or sexual derogatory language" are
recognized as impermissible discrimination as a matter of course.
Andrews, 895, F.2d at 1482 n. 3. However, offensive
discriminatory conduct does not necessarily require "sexual
overtones in every instance or that each incident be sufficiently
severe to detrimentally affect a female employee." Andrews,
895 F.2d at 1485 (quoted in Hartman v. Sterling, Inc. 2003 WL
22358548, *4 (E.D. Pa. 2003)). What is required is "a showing
that the offender's behavior was . . . based on a protected
category." Hartman, 2003 WL at *4 (quoting Abramson v. William
Paterson College of New Jersey, 260 F.3d 277, 278 (3d Cir.
2001)). Consequently, "because `discrimination is often masked in
more subtle forms, it is often difficult to discern
discriminatory animus'"; therefore, "`with respect to certain
conduct, the intent to discriminate can be inferred.'" Id.
In the case sub judice, the Plaintiff offers into evidence
self-documented instances of the alleged hostile work environment
often facilitated by disagreements between the Plaintiff and
Donald Lepley. (Document No. 26, Exhibit A). The five incidents
of sexual harassment listed above constitute the core of
Plaintiff's sexual discrimination claim. Based upon the sexually
derogatory language included in at least two of the incidents
above, wherein it is alleged that the Plaintiff performed sexual
favors in order to receive overtime work, the Court determines
that the Plaintiff has provided sufficient evidence that the
Defendant's conduct was based on a protected category. 2. Pervasiveness and Regularity of Conduct
A sexual harassment claim is actionable if it is established
that the "workplace is `permeated with discriminatory intimation,
ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an
abusive working environment.'" Hartman, 2003 WL at *5 (quoting
Harris, 510 U.S. at 21, 114 S.Ct. 367, 126 L.Ed.2d 295). In
order to satisfy this element of a prima facie claim of sexual
discrimination, a plaintiff must show that the "incidents of
harassment occur either in concert or with regularity."
Hartman, 2003 WL at *5 (quoting Andrews, 895 F.2d at 1484)
(quotations and citations omitted).
The Court also observes that the standard applied by the Third
Circuit to determine whether "harassment is pervasive and
regular" appears to differ from the Supreme Court's requirement
as defined in Harris, supra, and later in Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998,
140 L.Ed.2d 201 (1998). Specifically, the Third Circuit's formulation of this
prong as defined in Andrews v. City of Philadelphia,
895 F.2d 1469 (3d Cir. 1990) is unlike the Supreme Court's standard in
Harris, and the difference has been analyzed by the Third
Circuit in Abramson v. William Paterson College of New Jersey,
260 F.3d 265, 277 n. 6 (2001) as follows:
[The Supreme Court] required that the plaintiff
demonstrate that the harassment was `severe or
pervasive.' Id. On at least one previous occasion,
we have also referred to the standard as severe or
pervasive. See Walton v. Mental Health Ass'n of
Southeastern Pa., 168 F.3d 661, 667 (3d Cir. 1999)
(applying Title VII hostile work environment test to
ADA harassment claim and holding that plaintiff
failed to `demonstrate that the asserted harassment
was pervasive or severe enough to meet the Harris
standard.'). In the instant case, Abramson asserts a
claim that the discrimination was pervasive and
regular, thus fulfilling both the Andrews and the
Harris tests. Therefore, we adopt the approach
taken in Bouton. We note that the distinction
between `severe or pervasive' and `pervasive and
regular' may be important, but `do not find it
necessary to resolve whether [the difference in
language] was inadvertent.' Bouton [v. BMW of N.
Am., Inc., 29 F.3d 103, 106 n. 2 (3d Cir. 1994)]. Abramson v. William Paterson College of New Jersey,
260 F.3d 265, 277 n. 6 (2001); see also Dougherty v.
Henderson, 155 F.Supp.2d 269 (E.D. Pa. 2001); Ogden
v. Keystone Residence, 226 F.Supp.2d 588 (M.D. Pa.
2002). Accordingly, the Court in the case sub
judice turns its attention to the Plaintiff's
allegation of sexual harassment as set forth in Count
The Court observes that the Plaintiff fails to assert that the
alleged unwelcome sexual conduct occurs with any specific
frequency or in any regular pattern. (Document No. 1, ¶¶ 32-41).
In particular, the Plaintiff claims that "at various times [she
was] subjected to unwelcome sexual overtures and comments by male
members of Defendant's management." Id. at ¶ 33. However,
during the approximate six years that Plaintiff was employed by
the Defendant, Plaintiff cites merely two occasions of alleged
sexual harassment. (See Document No. 25, Exhibit B, pp. 5-6,
wherein the Plaintiff indicates two alleged incidents on May 2,
1998 and May 8, 1998.)
The Court also observes that while Plaintiff cites two
incidents of inappropriate language used by the Defendant
regarding the Plaintiff's overtime employment, the Plaintiff
fails to cite the frequency of these comments. In other words,
the Plaintiff does not provide any indication that such comments
occurred on other occasions. Indeed, there is no evidence in the
record that any alleged sexual harassment by the Defendant could
be characterized as pervasive and regular and/or severe and
pervasive. See Andrews, supra; Bouton, supra; Abramson,
supra. Consequently, the Court determines that a jury could not
reasonably find that the Defendant's alleged sexual harassment
was pervasive and regular. Accordingly, the Court determines that construing the record in
the light most favorable to the Plaintiff, the Plaintiff has not
met her burden with regard to the second element of her prima
facie sexual discrimination claim. Specifically, the record does
not support Plaintiff's claim that the Defendant engaged in
pervasive and regular conduct such that the work environment was
charged with sexual harassment. In fact, the documented instances
included in the record merely evidence that Plaintiff and Donald
Lepley did not agree as to how their duties and responsibilities
were to be effectively carried out. The two documented instances
where Donald Lepley did communicate overt sexual references do
not amount to conduct that permeated the work environment with
sexual discrimination. Thus, the Court determines that the
Plaintiff has failed to set forth a genuine issue of material
fact regarding a sexual discrimination claim, and Defendant's
Motion for Summary Judgment is granted.
An appropriate order follows. ORDER
AND NOW, this 21st day of November, 2005 upon
consideration of Defendant's Motion for Summary Judgment
(Document No. 20), Plaintiff's Response to Motion for Summary
Judgment (Document No. 24), Federal Rule of Civil Procedure 56,
and based upon the record in the case sub judice, IT IS HEREBY
ORDERED that Defendant's Motion for Summary Judgment is granted.
IT IS FURTHER ORDERED THAT Judgment is hereby entered in
favor of the Defendant, Commonwealth of Pennsylvania, Department
of Corrections, State Correctional Institution at Somerset, and
against the Plaintiff, Judith Benny.
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