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STRAUB v. FIRST MEDIA RADIO

November 28, 2005.

DEBORAH STRAUB, Plaintiff,
v.
FIRST MEDIA RADIO, LLC, Defendant.



The opinion of the court was delivered by: KIM GIBSON, District Judge

MEMORANDUM OPINION and ORDER OF COURT

This matter comes before the Court on First Media Radio, LLC's ("Defendant") Motion for Summary Judgment (Document No. 24), its accompanying Brief (Document No. 25) and Appendix (Document No. 26) and Deborah Straub's ("Plaintiff") Concise Statement of Facts Precluding Summary Judgment (Document No. 31), Brief in Opposition (Document No. 32), Appendix (Document No. 33), the Defendant's Reply Brief (Document No. 39) and Plaintiff's Sur-reply Brief (Document No. 40).

The Court possesses original jurisdiction over the Plaintiff's claims under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, in this matter pursuant to 28 U.S.C. § 1331, and 42 U.S.C. § 2000e-5(f)(3) and supplemental jurisdiction over the Plaintiff's Pennsylvania Human Relations Act claims in this matter pursuant to 28 U.S.C. § 1367. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391. UNDISPUTED MATERIAL FACTS

  For purposes of the present motion, the following facts are found to be undisputed by the Court based upon the submissions of the parties.*fn1

 
Deborah Straub worked for Vox Allegheny, a radio station in Dubois, [Clearfield County, Pennsylvania] from June, 2000 until April, 2002. Defendant, First Media Radio, LLC, purchased and began to operate Vox Allegheny on April 1, 2002. When Defendant purchased and began to operate the Dubois radio station, it already was operating a radio station in State College, Pennsylvania. Defendant hired Michael McGough to be the District Manager, overseeing both stations. He also served as General Manager of the State College station. McGough's office was physically located in the State College station. However, he would travel to the Dubois [Station] at most once or twice a week and, indeed, sometimes they did not see him for weeks. Francis "Moose" Rosana was and is the General Manager at the Defendant's Dubois station. Alex Kolobielski was and is president and CEO of First Media Radio, and was based in Easton, Maryland. Rosana was Straub's direct supervisor. McGough supervised Rosana, and was Straub's second level supervisor. Straub first met McGough in April 2002.
When First Media Radio took over the operation of the DuBois station, and Mr. McGough became District Manager, Mr. McGough spent time analyzing the various areas of the DuBois station, as well as the State College station, and their related staff members. McGough began discussing Straub's elimination with Alex Kolobielski and Francis Rosanna beginning in the summer of 2002. Mr. McGough drafted a memo of his analyses for Mr. Kolobielski dated August 12, 2002 (approximately four months after First Media Radio became owner of the DuBois station). The August 12, 2002 memorandum, which was identified as Exhibit 14 to the McGough Deposition, states the following regarding the subject of "office staff":
The office staff in State College is fine, but we may need to eventually make a change in DuBois. As you've already noted, Debbie Straub's bookkeeping skills appear to be marginal. On top of that, she's been in the middle of several of the personnel problems mentioned earlier. Between DuBois Business College and Penn State-DuBois, the town should be crawling with qualified candidates for this kind of position. I'm going to contact the placement offices at both schools and have them refer applicants to me in State College, just to see what's out there.
Defendant claims the decision to fire Straub was made jointly by McGough, Rosana and Alex Kolobielski. . . . However, according to Rosana, McGough first raised the idea of eliminating Straub. McGough, on the other hand, claims Kolobielski first raised the issue of eliminating Straub. (emphasis in the original). [A]ccording to Kolobielski, he, McGough, and Rosana made a "joint decision" [to terminate Straub]. Kolobielski "does not recall" who was the first person to raise the issue of firing Straub. He contends the three decided simultaneously to eliminate Straub. Mr. Kolobielski testified that he did not recall Mr. Rosana saying specifically that Plaintiff should be fired for a specific reason.

  Straub has held various positions in the radio industry both inside and outside sales, as well as serving as a continuity person writing and scheduling commercials to go on the air. When First Media began operating the DuBois station, Straub was employed in the position of office manager. Straub had held the office manager position with Vox Allegheny since January, 2001. After the First Media purchase, her duties expanded to include inputting, traffic orders, creating logs, and using various computer software programs such as Microsoft Office, Excel and Quickbooks to do her bookkeeping work and she was responsible for generating different accounting-type reports; Straub had also inputted traffic orders, created logs, worked on payroll, billing and deposits while working for Vox Allegheny. Plaintiff was taught by Nancy Doerr, the office manager from the State College station, how to do payroll under First Media Radio, and Ms. Doerr also instructed Plaintiff with regard to procedures with the computer programs and required reports. Plaintiff also was taught by and received assistance from the Company's outside accountant.

  With First Media Radio as the Station's owner, Plaintiff also had direct communications with Mr. Kolobielski, First Media Radio's CEO, in that she emailed him weekly reports and spoke to him by telephone once or twice a week with regard to the station's financial matters. As office manager for First Media Radio, Plaintiff was responsible for the billing of the advertising client, accounts receivable, accounts payable and payroll. Plaintiff staffed the office in DuBois along with a full-time receptionist named Debbie Nestor, who answered the phones, greeted Station visitors, and entered advertising sales orders into the "traffic" computer system. Based on the orders entered, a traffic log was created and commercials were played on the air. Plaintiff was responsible for checking the traffic order logs, merging them with music log, and generating bills to the advertising clients from the traffic computer system. Ms. Nestor assisted Plaintiff with the billing. The DuBois station is a fairly small station, having approximately nine full-time employees.

  Defendant claims the decision to fire Straub was made jointly by McGough, Rosana and Alex Kolobielski. . . . However, according to Rosana, McGough first raised the idea of eliminating Straub. McGough, on the other hand, claims Kolobielski first raised the issue of eliminating Straub. (emphasis in the original). [A]ccording to Kolobielski, he, McGough, and Rosana made a "joint decision" [to terminate Straub]. Kolobielski "does not recall" who was the first person to raise the issue of firing Straub. He contends the three decided simultaneously to eliminate Straub. Mr. Kolobielski testified that he did not recall Mr. Rosana saying specifically that Plaintiff should be fired for a specific reason.

  Within a week after Defendant began operation of the DuBois radio station, McGough joined Straub outside the station building [to smoke a cigarette and said "I see there's a fellow smoker"]. The two began talking about future changes and things that were going to be made better. After Mr. McGough had been out there with her for maybe four minutes, he allegedly pinched Plaintiff's cheek, once. Plaintiff described it as "a quick little thing." Plaintiff testified that Mr. McGough did not say anything improper. Plaintiff testified that she did not say anything about the pinch to Mr. McGough, or report it to anyone. Plaintiff testified that she threw away her cigarette, which was almost done, and went inside. On other occasions, McGough would rub Straub's shoulders while in her office at work. McGough would walk into Straub's office, and would stand behind Straub. He then would ask her how things were going, and begin to rub her shoulders. McGough would spend up to half a minute rubbing Straub's shoulders.

  Plaintiff testified that the second incident she cites took place in her office. Mr. McGough entered the office. Plaintiff was sitting at her desk. Mr. McGough said something like "hey, how's it going," to which she answered "fine." According to Plaintiff, after Mr. McGough was in her office for thirty seconds he rubbed her shoulders, for approximately twenty to thirty seconds. Plaintiff testified that there was just idle chitchat during this time. The door remained open. Mr. McGough then asked Plaintiff if Mr. Rosana was in the building. Plaintiff testified that Mr. McGough was not in her office for more than two minutes in total, then he was "off and gone." Plaintiff testified that she did not say anything to Mr. McGough about the shoulder rubbing, and indeed said nothing to anyone but her husband.

  McGough then touched Straub a third time. He again walked into her office, and began to massage her shoulders for about twenty to thirty second while she was working at her desk. During this massage, McGough did not discuss anything [unrelated to work although Straub testified that she did not know if they discussed anything about work]. Again, Plaintiff testified that she said nothing about the shoulder rubbing to Mr. McGough and that she mentioned it to her husband but no one else. McGough then touched Straub a fourth time. Plaintiff testified that [this] incident about which she now complains occurred in the hallway of the station Straub was working and talking to a coworker. Plaintiff testified that Mr. McGough had been talking to the receptionist and came over to say hello to Plaintiff, who was in the hallway at her office door. Plaintiff testified that she had colored her hair in a different color. McGough approached Straub, asked her what she did to her hair, and then reached up and began to play with it, touching it and grabbing it. According to Plaintiff, Mr. McGough "reached up and he was playing with — touching it, grabbing my hair" and saying "what did you do to your hair."

  McGough then touched Straub a fifth time. [] Plaintiff recounted at her deposition [that it] involved her smoking with Mr. McGough outside the building on the front stoop. Plaintiff could not recall what they were talking about, but she testified that Mr. McGough was standing beside her and he reached with one hand and rubbed her back ("not real far" from her shoulders") for about ten seconds. Plaintiff testified that she stepped away, "kind of shrugged it off" and continued talking with Mr. McGough. Plaintiff testified that, again, she did not complain or mention it to anyone, except her husband.

  McGough then touched Straub a sixth time. McGough rubbed Straub's shoulders for thirty seconds in her office as he stood behind her sitting in her office chair talking to her; Straub did not verbally protest but "shrugged away and moved."

  McGough then touched Straub a seventh time. Straub and McGough were outside smoking cigarettes engaging in "chitchat" when McGough said "you're just so cute" and just pinched [her] cheek. Plaintiff testified that she did not recall what prompted that action.

  McGough then touched Straub an eighth time, outside the back of Defendant's building. McGough rubbed Straub's back for twenty to thirty seconds. Plaintiff admitted that she said nothing to Mr. McGough about it.

  McGough then touched Straub a ninth time [in January 2003]. Again, standing outside Defendant's building while on [a smoke] break, McGough pinched Straub's cheek a "couple" times and McGough talked about how cold it was and that they were "going to have to warm up and get inside". Plaintiff testified that the final incident occurred on Thursday, January 23, 2003. Plaintiff testified that she was working in her office when Mr. McGough came in and started rubbing her shoulders. Plaintiff testified that after a few seconds she "asked him firmly not to do that ever again, just to not do it." Plaintiff testified that Mr. McGough did stop; he did not say a word, he just "glared" at her. Plaintiff testified that there were no more incidents of what she considered harassment after January 23, 2003.

  McGough did not limit his touching to just Straub. He touched, or hugged at work at least three other women during 2002-2003. Straub observed McGough touching and hugging co-worker Debbie Nestor at work. McGough gave Nestor a "greeting hug" at work. McGough rubbed in a massaging manner the shoulders of salesperson Shelly Sprankle-Caine for ten or fifteen seconds in the presence of two other persons. McGough would touch Doerr in a way that she told Straub made her feel uncomfortable. In late December 2002 or early January 2003, Straub again spoke with Doerr about McGough's conduct. Straub told Doerr that she was uncomfortable with McGough's conduct. Straub told Doerr about several instances of touching by McGough. Doerr told Straub that McGough had a habit of grabbing her hand when she walked down the hall, and because Doerr was not a touchy person, she did not like such touching. Doerr also told Straub that McGough would touch her back and engage in conduct that made her very uncomfortable.

  Debbie Nestor testified that she turned in a notice of resignation letter on January 8, 2003. Ms. Nestor testified that she had left copies of the letter for both Mr. Rosana and Mike McGough, who was with Mr. Rosana that day out of the office at a meeting. After McGough and Rosana arrived back at the DuBois station that day, and received Ms. Nestor's resignation letter, Mr. Rosana conferred privately with Mr. McGough. Mr. McGough then took Ms. Nestor aside and told her she could not leave and that they were planning on letting Ms. Straub go after the auditors came. Ms. Nestor told Mr. Rosana she was submitting her resignation because of what she perceived as poor treatment by Plaintiff. Ms. Nestor testified that she and Ms. Straub did not get along, that she did not like the way Ms. Straub treated people and that Ms. Nestor "was in tears several times over her." Ms. Nestor testified that Mr. McGough and Mr. Rosana encouraged her to reconsider her resignation and to keep their conversation "in strictest confidence." Ms. Nestor withdrew the resignation letter after being advised that Plaintiff was not going to be around in the near future. Plaintiff has alleged that on the morning of January 27, 2003, she approached Mr. Rosana, the General Manager, and asked him "what's our sexual harassment policy here." Plaintiff testified that Mr. Rosana was busy getting ready for a sales meeting, and he allegedly replied that "there is no such thing as sexual harassment," and went in his office and answered the phone. Plaintiff did not tell Mr. Rosana what she claims Mr. McGough had done.

  On February 6, 2003, Plaintiff was told by Mr. McGough and Mr. Rosana that her employment was being terminated. Defendant fired Straub during a meeting in which Straub, Rosana and McGough attended. McGough told Straub that Defendant was downsizing [due to cut-backs, her job was being eliminated and that it would be done by Nancy Doerr in State College]. After the meeting, Rosana told Straub that he had just learned that very same day that Straub was to be discharged. Plaintiff testified that Mr. McGough told her they were down-sizing, and that her job was being eliminated as her job was moving to State College, where ...


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