The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Before the Court for consideration and disposition is a MOTION FOR RECONSIDERATION (Document No. 66) filed by defendant Lockheed Martin Operations Support, Inc. ("Defendant") and PLAINTIFF'S REPLY TO DEFENDANT'S MOTION FOR RECONSIDERATION (Document No. 67). The issues have been fully briefed, and the matter is ripe for disposition. For the reasons which follow, the Motion for Reconsideration will be denied.
Generally speaking, a motion for reconsideration will only be granted if: (1) there has been an intervening change in controlling law; (2) new evidence, which was not previously available, has become available; or (3) necessary to correct a clear error of law or to prevent manifest injustice. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 47 U.S. 1171 (1986). The Court fails to see how the Motion fits any of these situations. Nevertheless, the Court will consider and decide the Motion based on the merits of the parties' positions.
Plaintiff Parvin Foroozesh ("Plaintiff") was employed by Defendant as a LAN/WAN Administrator. Her job was to provide computer support services to the Federal Aviation Administration ("FAA") under the National Airspace Systems Implementation Support Contract II ("NISC II"). She worked primarily at an FAA facility, and while working at that facility she was allegedly subjected to unlawful harassment by Richard Leonard ("Leonard"), who was employed by the FAA. On December 18, 2000, Plaintiff complained about the mistreatment by Leonard to Defendant and the FAA. Leonard was sent to sensitivity training by the FAA, and Plaintiff conceded at her deposition that Defendant's response to the complaint was reasonable. Nevertheless, Leonard continued to harass Plaintiff. Plaintiff later complained about Leonard's continued harassment to Dan Hamilton, who was her immediate supervisor. Hamilton made no response to the complaint, and he was obligated to, but did not, inform Frank Merrick, Defendant's human resources officer, of the continued harassment. Interestingly, Hamilton was not employed by Defendant, but was employed by TRW, Inc., which was another company involved in the NISC II contract.
In January of 2002 Plaintiff was terminated due to FAA budget cuts. She filed an action under Title VII of the Civil Rights Act of 1964 which alleged claims for gender and national origin discrimination, a hostile work environment and unlawful retaliation. A Motion for Summary Judgment filed by Defendant was granted in part and denied in part. The only remaining claims in this action are for 1) a hostile work environment based on harassment by Leonard, and 2) retaliation based on the creation of a hostile work environment by Leonard. The Motion for Reconsideration presents a novel issue regarding whether Plaintiff's post-December 18, 2000 complaints to Hamilton (who worked for TRW, Inc.) about continued harassment by Leonard (who worked for the FAA) is sufficient to charge Defendant with actual or constructive notice of the continued harassment. The Motion for Reconsideration also raises another novel issue regarding what evidence a court may consider when an employer makes an allegedly reasonable response to harassment, yet the harassment continues.
A. Whether Defendant Had Notice of Plaintiff's Continued Harassment by Richard Leonard
Defendant contends that although Dan Hamilton was Plaintiff's "task order manager," he was employed by TRW, Inc., which was another company involved in the federal "NISC II" contract under which Plaintiff was employed. Therefore, according to Defendant, "there is no basis for concluding that [Plaintiff's] alleged complaints to Hamilton constituted actual notice by (sic) [Defendant] of a hostile work environment." Motion at 5 (emphasis in original).
The fact that Hamilton was employed by TRW was never brought to light in the parties' summary judgment filings, and given the circumstances*fn1 the Court assumed that Hamilton was employed by Defendant. Therefore, the Court found that a complaint by Plaintiff to Hamilton was "sufficient for a reasonable fact finder to find that Defendant had actual notice of post-complaint harassment by Leonard ..." Memorandum Opinion at 19. "Hamilton was supposed to report these comments to Merrick, but he apparently failed to do so, and he apparently failed to take any action to correct the situation." Id. (citing Plaintiff's deposition at 211-12).*fn2 Thus, it appears that because Hamilton was not employed by Defendant, no one who was actually employed by Defendant had actual notice of the continued harassment to which Plaintiff was subjected after December 18, 2000. However, constructive notice will suffice. In Kunin v. Sears Roebuck and Co., 175 F.3d 289, (3d Cir. 1999), the Third Circuit held that "there can be constructive notice in two situations: where an employee provides management level personnel with enough information to raise a probability of sexual harassment in the mind of a reasonable employer, or where the harassment is so pervasive and open that a reasonable employer would have had to be aware of it." Kunin, 175 F.3d at 294. Kunin does not address whether notice can be imputed to an employer where the employee specifically complains about harassment to her supervisor, yet the supervisor is actually employed by another company. The Court has found no case precisely on point. However, it appears that Plaintiff's complaint to Hamilton is sufficient to impute constructive notice to Defendant. First, Hamilton was Plaintiff's supervisor regardless of who issued his paycheck, and the evidence of record reflects that Defendant acquiesced in and exerted control over his supervision of Plaintiff. See, e.g., Hamilton dep. at 10 (Q: "If Dan Courain [of Lockheed Martin] instructed you to do something in your job position, is that something you would be required to do?"; A: "Sure. The answer is yes."); see also id. ("I followed all of the Lockheed Martin policies and procedures relative to this contract."). Indeed, and among other relevant facts, Hamilton made the determination that Plaintiff's employment would be terminated. Second, there is no authority for the proposition that an employer can insulate itself from Title VII liability by allowing an employee of another company to supervise its own employees. Under these circumstances, where Defendant has allowed an employee of another company to supervise and terminate one of its own employees, the Court observes that actual notice to the designated supervisor may be imputed as constructive notice to Defendant. This conclusion is further reinforced by the fact that Hamilton was charged with the duty to report incidents of harassment to Merrick, Defendant's HR manager, and by Hamilton's own testimony that in the event of a complaint about an FAA employee, he would inform the appropriate FAA personnel and the complainant's HR manager. Hamilton dep. at 43-44.
Defendant also contends that Plaintiff did not act reasonably in complaining about harassment after December of 2000 because she did not complain about harassment through the appropriate HR manager under the NISC II contract. Motion at 5-6. In support of its argument, Defendant cites Kunin, supra, and Ogden v. Keystone Residence, 226 F. Supp. 2d 588 (M.D. Pa. 2002). Unlike this case, however, in Kunin the plaintiff's shortcoming was that her complaint about a co-worker's "cursing" failed to "communicate that the offensive language had sexual overtones," and therefore was insufficient to place the employer on constructive notice of sexual harassment. Kunin, 175 F.3d at 294. In Ogden, the plaintiff "was aware of the anti-harassment procedures, but she failed to utilize the complaint process," and "may have mentioned [her supervisor's] conduct to her immediate supervisors, [but] did not ask them to follow up on her complaints." Ogden, 266 F. Supp. 2d at 602. The district court held that these facts established the affirmative defense to a hostile work environment created by a supervisor under Faragher v. City of Boca Raton, 524 U.S. 775 (1998) which requires an employer to demonstrate "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." Faragher, 524 U.S. at 807. Ogden is distinguishable because it involved harassment by a supervisor, not a co-worker, and therefore the affirmative defense available under Faragher is not at issue in this case. Additionally, unlike the plaintiff in Ogden, in this case Plaintiff was aware of and actually availed herself of formal complaint procedures on December 18, 2000, yet despite her complaint the harassment allegedly continued. Therefore, neither Kunin not Ogden provides a basis to reverse the Court's earlier decision.
B. Whether Plaintiff's Treatment by Leonard was "Severe" or "Pervasive"
In order to hold an employer liable for a hostile work environment, the plaintiff must show, inter alia, that the harassment was severe or pervasive. Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 2006). The Court has already found that "[t]he harassment that Plaintiff suffered at the hands of Leonard was, viewed in the light most favorable to Plaintiff, sufficiently pervasive to support a cause of action" for a hostile work environment and "hostile work environment" retaliation, but Defendant raises the issue again. Memorandum Opinion at 18. Defendant cites Peters v. Renaissance Hotel Operating Co., 307 F.3d 535 (7th Cir. 2002),*fn3 as well as two recent, unreported Memorandum Opinions authored by the Honorable Sean J. McLaughlin of this court. The Court has examined these non-precedential opinions and finds them to be distinguishable. Unlike the instant case, in Peters, "many of the actions that [the plaintiff] identifie[d] were not directed at him." Peters, 307 F.3d at 552. In fact, the ...