The opinion of the court was delivered by: Judge Munley
Presently before the court for disposition are Defendant Robert Dee's Motion for Summary Judgment and a Motion for Summary Judgment filed jointly by Defendants Borough of Dunmore, Salvatore Mecca, Mary Rice, and Other Unknown Agents of the Borough of Dunmore (collectively " the Borough Defendants"). These matters have been fully briefed and argued and are ripe for disposition. For the following reasons, we will deny Dee's motion in its entirety and grant the Borough Defendants' motion in part and deny it in part.
Plaintiff Diane Cimino ("Cimino") began working as a janitor for Defendant Dustbusters Inc., in March 1998. (Defs.' Statement of Facts, Ex. E, Michelle Nardozzi Dep. 14:21-15:2) ("Nardozzi Dep."), (Defs.' Statement of Facts, Ex. D, Cimino Dep. 11:5-8) ("Cimino Dep.") Dustbusters assigned her to work for the Borough of Dunmore in April 1998, (Nardozzi Dep. 15:1-2), where she cleaned both the Borough of Dunmore building and the Dunmore police station. (Cimino Dep. 12:5-13) She also cleaned for other Dustbusters clients. (Cimino Dep. 11:11-12:4)
Dustbusters was established in 1987 by Vanessa Miles, the company president, and Michelle Nardozzi, the vice president. (Nardozzi Dep. 5-6) Dustbusters began sending its employees to clean the Dunmore Borough building and the Dunmore police station in 1993. (Nardozzi Dep. 10: 6-8) At that time, Nardozzi and Miles performed a walk through of the Borough facilities, where a Borough representative explained what areas they wanted cleaned, and Nardozzi and Miles then determined how to clean the premises. (Nardozzi Dep. 16:3-14) No Borough representative directed how Dustbusters would clean. (Nardozzi Dep. 16: 3-7) When Cimino started, Nardozzi and Miles explained how she should clean. (Cimino Dep. 20:14-16) No borough employee or representative directed Cimino's cleaning performance. (Cimino Dep. 19:25-20:10) If the Borough wanted to alter Cimino's cleaning duties, it had to contact Dustbusters, or Cimino would have to obtain Dustbusters' authorization before complying with the request. (Nardozzi Dep. 39:8-12) Dustbusters made the decisions about which cleaning employees would service which clients, but in the event that a client was displeased with a particular employee, Dustbusters would replace that employee with another to avoid losing the client. (Nardozzi Dep. 13: 6-9, 14: 3-9) Cimino received her cleaning supplies from Dustbusters, and when she needed more, would contact Nardozzi or Miles. (Cimino Dep. 96:15-17, 97:16-19) Cimino was paid an hourly rate by Dustbusters and received no compensation from the Borough (Cimino Dep. 16:7-19) Dustbusters would bill the Borough every week. (Nardozzi Dep. 10:19-11:14)
The Borough determined when Dustbusters should send someone to clean. (Nardozzi Dep. 37:8-20) In the event that the Borough needed a change in schedule, they would not contact Cimino, but instead would inform Dustbusters, who would then contact Cimino. (Nardozzi Dep. 17:5-18:5) Similarly, if Cimino could not work because she was sick, she would contact Dustbusters, not the Borough. (Cimino Dep. 172:4-8) On the days that Cimino was scheduled to clean, she was able to determine her own start time based on the convenience of the Borough. (Nardozzi Dep. 72:15-18; Cimino Dep. 24:15-19) She had to arrive at the police station before the last police dispatcher left for the day because she needed a Borough employee provide her access to the facilities. (Cimino Dep. 24:17-19) Generally she would arrive between three thirty and three forty-five p.m. because the dispatchers would leave at four. (Cimino Dep. 24:20-24) After the dispatchers left, she was the only person left in the building. (Cimino. Dep. 107:10-12)
Defendant Robert Dee, a dispatcher for the Borough Police, began verbally harassing Cimino a few months after she began cleaning the police station. (Cimino Dep. 40:4) He would verbally harass her every time she saw him, which was possibly once a month. (Cimino Dep. 35:18-36:6) At first, he told Cimino that she "had nice breasts or a nice ass" and that she "had a nice body." (Cimino Dep. 32:12-21) Then he told her, "he wanted to make love to [her], he wanted to fuck [her] and he wanted to eat [her] on the table right there" every time he saw her. (Cimino Dep. 39:2-9) His harassment became physical. (Cimino Dep. 40:3-9) Dee hugged Cimino on "a few occasions . . .[t]hroughout the police station." (Cimino Dep. 67:10-19) He also grabbed her buttocks and breasts and he would kiss her. (Cimino Dep. 141:17-142:6) Cimino testified that he would "maul me and touch me all over." (Cimino Dep. 50:2-3)
On September 11, 2000, Chief Mecca entered the police station after hours. (Mecca Dep. 29:21-30:6, 67:13-23) He usually left work at three p.m., (Mecca Dep. 33:18) but on that day returned to pick up a item that he had forgotten. (Mecca Dep. 29:21-30:7) While in his office, he viewed a surveillance monitor and saw Dee with his arms around Cimino. (Mecca Dep. 30:1-7) Then, after Dee left the building, Mecca claims he approached Cimino and "asked her if anybody was bothering her. She said no. I said, are you sure, nobody here is bothering you? No. Nobody is bothering you whatsoever? No. Okay." (Mecca Dep. 30:21-31:2) Mecca believed that the embrace he saw was consensual because of Cimino's response to his questioning. (Mecca Dep. 35: 17-18, 145:5-14) Cimino denies that this conversation took place. (Cimino Dep. 129:23-130:6)
Mecca did, however, order Captain Patrick Reese to review the recorded surveillance from that day. (Mecca Dep. 31:19-24, Reese Dep. I 35:9-36:5) The recording system, however, had malfunctioned and failed to record the incident that Mecca saw on the monitor. (Mecca Dep. 32:4-11, Reese Dep. I 35-36) Mecca then instructed Reese to record and review the surveillance to monitor the situation when Dee and Cimino worked together.
(Mecca Dep. 34:15-16, Reese Dep. I 41: 23-24) On September 26, 2000, Reese reviewed the tape from the day before, and saw Dee embrace Cimino for about eight seconds, and Cimino then broke the embrace. (Reese Dep. I 54:1-25) Dee then left the room, reentered, and embraced Cimino again. (Reese Dep. I at 55:2-4) Once again Cimino broke the embrace. (Reese. Dep. I. 55:4-6) After reviewing that tape, Reese contacted Mecca. (Reese. Dep. I 55:6-7) Mecca then reviewed the tape. (Reese Dep. I 56:7-9, Mecca Dep. 71:18-20). Mecca agrees that the tape showed an embrace that Cimino broke. (Mecca Dep.71:10-25)
On October 24, Reese reviewed the tape from October 23 and saw Dee inappropriately grab Cimino's buttocks. (Reese. Dep. I 67:18-68:13) Mecca also viewed the tape showing Dee grabbing for Cimino's buttocks. (Mecca Dep. 72:2-14) Reese next uncovered unusual behavior on November 6, 2000 (Reese. Dep. I 70: 25-71:6) That recording showed, "Cimino entering the men's locker room, which is located off of the patrol room. Several seconds later Robert Dee enters the locker room. Both of these individuals were in the locker room alone for approximately ten seconds. Robert Dee then exits the locker room." (Reese Dep. I 71: 1-6)
At no point in the investigation did Mecca instruct Reese to question Dee about the situation (Reese Dep. II 6:17-21), and at no point during the investigation did Mecca approach Dee about his harassment. (Mecca Dep. 74:18-19) Furthermore, after Mecca allegedly approached Cimino on September 11, 2000, he admits he neither spoke to her again regarding the harassment nor instructed Reese to do so. (Mecca Dep. 74:15-17, Reese Dep. I 75:1-17) Reese never approached Cimino, (Reese Dep. I 75:8-25) and he did not approach Dee to ask if he was having a consensual affair. (Reese Dep. I 73:8-18) Similarly, Reese reported his findings solely to Mecca and did not inform anyone else of the investigation. (Reese. Dep. I 72:1-7) Neither Reese nor Mecca informed Dustbusters or any other Borough official or employee about their investigation or Dee's behavior. (Id. at 72: 1-7, 84: 16-18; Mecca Dep. 74:3-10, 122:1-4, 84-85)
Cimino first informed a Borough employee of Dee's behavior on the day before Thanksgiving, November 22, 2000. (Cimino Dep. 45-46) She went to Heil's bar that evening with her husband and encountered Dunmore Police Captain Tom Bradley. (Id.) She was previously acquainted with Bradley and Bradley's wife, and had cleaned Bradley's home on a few occasions. (Id. at 46:1-6) She told Bradley that "Bobby Dee is bothering me, harassing me." (Id. at 46:19-23) Bradley responded that he would speak with her at another time. (Id. at 46:23-25)
On November 26, 2000, Bradley brought Cimino's complaints to Mecca's attention. (Mecca Dep.75: 20-25) Mecca informed Reese and the Borough Mayor of the complaint, but did not tell anyone else. (Id. at 76:1-5, 77:13-17) Mecca directed Bradley to give a statement to Reese. (Id. at 76:24-77:2) Mecca ordered Reese to interview Cimino. (Reese Dep. II 16:15-17) Reese took a written statement from Cimino on December 11, 2000. (Id. at 9:3-7, Cimino Dep. 77:12-16) On December 12, 2000, Borough Manager Mary Rice and Mecca discussed the allegations, (Rice. Dep. 14:18-20) and Rice reported it to the Borough Council.
(Id. at 15:23-16:11) The Borough Council, Rice, and Mecca then met to discuss the situation. (Id. at 16:9-13) Rice first learned of Cimino's complaints from Mecca that day, (Id. at 14:12-20), but had been aware of Mecca's ongoing investigation before Cimino verbally complained of the harassment. (Id. at 39:1-6) Additionally, Rice, Mecca, and the Borough Solicitor met with Dee on December 12. (Mecca Dep. 91:4-9)
On December 11 or 12, at some point after Cimino gave her statement to Reese, she also complained to Nardozzi. (Cimino Dep. 84:23-85:8, Nardozzi 26:2-5) Cimino had not previously informed Nardozzi or Miles of Dee's behavior. (Cimino Dep. 85:9-13,102:24-103:1) In response, Nardozzi informed her that she would no longer clean the police station. (Cimino Dep. 85:22-86:3) Afterwards, Nardozzi spoke with Pat Reese and Mary Rice. (Nardozzi Dep. 28:12-14). Nardozzi explained that Cimino had a complaint, and Dustbusters intended to remove her from the borough building, and Rice agreed. (Nardozzi Dep. 30:3-19)
On December 14, the Borough held an executive session to discuss the allegations. (Rice Dep. 26:3-7) Rice, the Mayor, Council Members, and Borough Solicitor were present. (Rice. Dep. 26:11-13) The Borough assigned Mecca to investigate the incident. (Rice Dep. 27:7) The Borough suspended Dee as a result of the incident. (Mecca Dep. 107:21-23)
Cimino was removed from cleaning the police station, but continued to clean the Borough building. (Nardozzi Dep. 22:12-19) After Cimino worked two nights at he Borough building, Nardozzi removed her completely from cleaning the Borough because of the proximity of the two buildings. (Nardozzi Dep. 23:5-12) Rice believes she had input in the decision to completely remove Cimino from the buildings. (Rice 62:18-23) After Cimino left the borough buildings to clean other facilities, her superiors at Dustbusters began to ignore her and refused to say hello. (Cimino Dep. 13:10-15) The Dustbusters women would not look at her and refused to answer her phone calls. (Cimino Dep. 188:21-189:9) Thus, she felt it would be best for her to leave Dustbusters under these conditions, and she stopped working for Dustbusters. (Cimino Dep. 13:10-15)
II. Procedural Background
On July 2, 2002, Cimino filed a ten count Complaint against the Borough, Dustbusters, Dee, Rice, and Mecca. Count I advances a claim for sexual discrimination pursuant to Title VII, 42 U.S.C. §§ 2000e-2000e-17 against the Borough and Dustbusters. Count II is a 42 U.S.C. § 1983 claim against the Borough, Dee, Rice, and Mecca for constitutional violations. Count III is a 42 U.S.C. § 1985(3) claim against Dustbusters, the Borough, Dee, Rice, and Mecca for conspiracy to deprive Cimino of the equal protection of the law. Count IV asserts that the Borough, Dustbusters, Dee, Rice, and Mecca violated the Pennsylvania Human Relations Act ("PHRA"), 42 PA. CONS. STAT. ANN. §§ 951-63. Count V is a PHRA retaliation claim against the Borough, Dustbusters, Dee, Rice, and Mecca. Count VI is a negligent supervision claim against the Borough, Rice, and Mecca. Count VII is a negligent retention claim against the Borough, Rice, and Mecca. Count VIII is a battery claim against Dee. Count IX is an assault claim against Dee. Finally, Count X is an intentional infliction of emotional distress claim against Dee.
On August 29, 2003, we dismissed numerous claims pursuant to Federal Rule of Civil Procedure 12(b)(6). We granted the Borough's motion to dismiss Count VI, negligent supervision, and Count VII, negligent retention, because the Borough was entitled to official immunity. We denied Rice and Mecca's motion to dismiss these same claims. Additionally, we granted Dustbusters' motion to dismiss the hostile work environment claims in Count I and IV. We denied Dustbusters' motion to dismiss the retaliation claims in Count I and V, and the conspiracy claim in Count III.
As this case is brought pursuant to 42 U.S.C. § 1983 for constitutional violations we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). IV. Standard
Granting summary judgment is proper 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. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
The Borough Defendants have filed a joint motion for summary judgment, Dee has seperately moved for summary judgment, and Dustbusters currently has no motions pending before the Court. Therefore, we will consider the Borough Defendants' joint motion and Dee's motion seperately.
A. The Borough Defendants' Motion
The Borough Defendants seek to dismiss all claims pending against them. At present, Cimino has a Title VII claim against the Borough, 42 U.S.C. § 1983 and 42 U.S.C. § 1985 claims against Rice, Mecca, and the Borough, and ...