The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is a motion for summary judgment (Doc. No. 31) filed by defendant McDonald's Corporation ("McDonald's"). Hopelynn Neely ("Neely" or "plaintiff") filed this civil action against McDonald's and Desi Carter ("Carter") alleging, among other things, hostile work environment and constructive discharge claims against her former employer, McDonald's, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. ANN. § 951 et seq. ("PHRA"). Plaintiff voluntarily dismissed three other claims that she had asserted against McDonald's. Carter did not file or join in this motion for summary judgment and plaintiff asserts four claims against him which are not affected by this memorandum order.*fn1
McDonald's moves for summary judgment in its favor with respect to plaintiff's hostile work environment and constructive discharge claims under Title VII and the PHRA, the only remaining claims asserted against McDonald's. Summary judgment will be granted in favor of McDonald's on the hostile work environment and constructive discharge claims under both Title VII and the PHRA because the undisputed material facts of record show that plaintiff cannot prove a prima facie case for those claims.
The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
Plaintiff worked for McDonald's in its restaurant located at One Poplar Street, Crafton, Pennsylvania for a period of approximately five months, commencing in August 2003 to January 2004. (Combined Statement of Material Facts ("C.S.") Doc. No. 34 ¶ 1). Plaintiff was employed as a crew worker. Id. Carter was employed as a salaried manager-trainee at the same location from approximately September 2003 through February 2004. Id. ¶ 2. Carter held the position of a manager-trainee. In that position, he did not have the authority to hire or fire Neely or anyone else. Carter did not have the authority to establish the work schedules for employees. Carter did not have the authority to set or change pay rates for McDonald's employees. Carter did not have the authority to promote, demote or otherwise make tangible employment decisions affecting employees. Id. ¶ 3. Plaintiff testified that she believed Desi Carter was her "boss" and that he was the "second person in command" at the restaurant. Id.
In early October 2003, Carter began to harass Neely sexually with constant, inappropriate and unwelcome sexual attentions. Id. ¶ 9. These inappropriate attentions included, but were not limited to, brushing against and touching Neely's breasts, blowing into Neely's hair, brushing against her in a sexual manner, inappropriately touching and grabbing her buttocks, inappropriately cornering Neely and making unwelcome sexual advances when alone in certain areas of the restaurant, and making sexually explicit and derogatory remarks to Neely on a regular and consistent basis. Id. ¶ 10. In response to Carter's actions, Neely, on or about October 27, 2003, filed her first written complaint with her manager, Chris Bellock ("Bellock"). Id. ¶ 11. The complaint was in the form of a handwritten note which stated: Every time I work a shift with Desi he's always standing up ag[a]inst me & some thing is always rubbing ag[a]inst me. When changing the cash in drive threw[sic], he always goes behind me and rubs my but [sic] & not with his hand (even when he comes back to help me). My mother came in one day & had a problem with how close he was to me. He has asked me to E-mail, but why I don't know. I won't! Doc. No. 42-5, Pl.'s Ex. 4.
After receiving Neely's complaint, Bellock informed her immediate supervisor, Gwen Bruno Menzer ("Menzer"), an operations consultant, about the accusations concerning Carter's conduct. (C.S. ¶ 14). Upon learning of Neely's complaints from Bellock, Menzer contacted McDonald's human resources department. Id. ¶ 15. A representative from the human resources department instructed Menzer to conduct an investigation into plaintiff's complaints. Id. ¶ 16. During the course of her investigation, Menzer interviewed six to eight other employees. Id. ¶ 21. After speaking with the other employees, Menzer learned that none of those employees witnessed any of the conduct alleged by plaintiff. Id. ¶ 21. After the investigation, Carter was given a written warning for violating McDonald's zero tolerance policy (the "Policy") by reason of his unacceptable behavior and language. Id. ¶ 26. This warning read in full:
On November 12, 2003, it was brought to my attention that you violated the zero tolerance policy set by McDonald's along with unacceptable behavior and language being used with a crew person. This is a violation of McDonald's Zero Tolerance Policy and is resulting in a written warning. A future offense of this policy will result in further disciplinary action up to or including termination. We have reviewed and reiterated these policies on the date of the disciplinary action. Doc. No. 42-4, Pl.'s Ex. 3 at p.37.
The Policy, which was provided to each employee during orientation and was posted in each restaurant, set forth a course of action for employees who felt they had been harassed or otherwise discriminated against. C.S. ¶ 7. Plaintiff admitted that she understood the Policy and was aware of it. Id. ¶ 8. The Policy provided, in relevant part:
Every employee has the right, and is encouraged to tell any McDonald's employee in a professional manner to stop behavior toward him/her that the employee believes to be discriminatory, harassing and/or offensive. Any employee who feels subjected to discrimination or harassment should immediately report it to their Human Resources Manager or officer in charge. McDonald's will investigate any report thoroughly, with sensitivity towards confidentiality. If the report has merit, McDonald's will take corrective action, including, but not limited to, disciplinary action against the offender ranging from a warning to termination.
Menzer also instructed Bellock not to schedule Carter and Neely together on any work shift. Id. ¶ 27. Despite this instruction, the two were scheduled to work a simultaneous shift on November 20, 2003, eight days after Carter's disciplinary action. Id. After this shift, Carter's and plaintiff's schedule began to overlap frequently by a period of approximately one hour. (Doc. No. 42-2, Pl.'s Ex. 1, Pl.'s Dep. at 116). During this time, plaintiff stated that Carter did such things as "look her up and down," and he called her "babe." (Doc. No. 42-6, Pl's Ex. 5). Plaintiff, however, acknowledged in her deposition that Carter's conduct after the initial complaint did not rise to the level of harassment. (Doc. No. 42-2, Pl.'s Ex. 1, Pl.'s Dep. at 119). Plaintiff stated that after Carter started working a shift different from hers, though his shift had a one-hour overlap with plaintiff's shift, she did not remember being harassed by Carter again. Id. at 119-20. She also testified that when their shifts overlapped, there were no incidents of harassment because she "didn't let it get that far." Id. at 119.
Plaintiff made a second written complaint regarding Carter's conduct. Id. at 83. The exact date on which this written complaint was made is unclear, but viewing plaintiff's deposition and the written complaint in the light most favorable to the plaintiff, the court concludes that the second complaint was written on January 22, 2004. Plaintiff stated in her deposition that she was unsure of the date, but she believed it was made a few weeks after the first complaint in October 2003. Id. Plaintiff also stated in her deposition that she was currently unsure of the dates, but that she dated her complaints when she gave them to McDonald's. Id. at 20. The colloquy relating to the matter was:
"Q: Do you remember the date?
A: No, I don't. Everything was dated when I turned it in to McDonald's, though." Id.
The second complaint read as follows:
He is always look me up & down. I came in Dec. 26 for my check & he was looking me up & down & told me I look good in street close [sic]. I said ...