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Nolan v. Swartz Campbell

February 29, 2008


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

Judge Cercone


Jill Nolan ("Plaintiff") commenced this employment discrimination suit against her employer, Swartz Campbell, LLC ("Defendant"), seeking redress for a hostile work environment based on gender and her status as a working mother, disparate treatment, and retaliation. Plaintiff's claims are brought pursuant to Title VII and the Pennsylvania Human Relations Act ("PHRA"). Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, the motion will be granted.

In general, plaintiff claims that she was exposed to numerous inappropriate emails, jokes, stories, and comments from her direct supervisor and did not receive a raise because she was perceived and treated as unproductive and unprofitable due to her status as a part-time employee with child care responsibilities. She alleges the general attitude among individuals in management reflected negative attitudes towards working mothers, and the firm condoned various practices that were demeaning to women and stifled any efforts she made to market herself or improve her productivity. Defendant denies many of plaintiffs' allegations, noting that a vast majority of them are not corroborated by any independent evidence beyond plaintiff's self-serving testimony or recollection, and further argues that much of plaintiffs's evidence is based on innocuous events and statements that are taken out of context.

Federal Rule of Civil Procedure 56 (c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).

The record as read in the light most favorable to plaintiff establishes the background set forth below. Plaintiff was hired by defendant in October of 2002 as a part-time workers' compensation attorney as part of defendant's effort to open an office in Pittsburgh. (SMF ¶12). It was agreed plaintiff would work three days a week, Monday, Wednesday, and Thursday. (SMF ¶6). Plaintiff's initial supervisor, attorney Stanley Winikoff ("Winikoff"), hired Plaintiff knowing that she wanted to work on a part-time basis and would be needing to take maternity leave because she and her husband were in the process of adopting a child. (SMF ¶6).

Plaintiff was the first attorney hired to handle worker's compensation matters in defendant's Pittsburgh office. Winikoff told plaintiff that eventually there would be more worker's compensation files than she could handle. Plaintiff had concerns about being able to handle the files and taking maternity leave as planned. She also recognized that other attorneys would have to be hired to handle all the anticipated worker's compensation work. (SMF ¶ ¶ 6,7). Bill Copetas ("Copetas") was hired as a second worker's compensation attorney. (SMF ¶ 17). Copetas was hired as a full time attorney. Plaintiff took at least eight weeks of maternity leave in 2003 and then subsequently took a second maternity leave in 2004 with the birth of her first natural child. (SMF ¶13; SMF ¶18). During the 2004 leave Copetas covered assignments for plaintiff. (SMF ¶ 18).

Plaintiff's initial wages in 2002 was $42 per hour without benefits. (SMF ¶10; CSF ¶174). In 2003, the year in which Plaintiff took her first maternity leave, she received a $4 per hour raise, increasing her wages to $46 per hour. (SMF ¶6; SMF ¶15). During that year plaintiff earned $38,909 and billed a total of 599.8 hours, resulting in total gross receipts for defendant of $71,461. (SMF ¶16). In 2004, the year in which plaintiff took her second maternity leave, she earned $38,400 in wages, had 470.3 billable hours, and generated $48,515 in gross receipts for defendant. (SMF ¶20). Plaintiff was told she would be getting a $2 per hour raise at the end of 2004, but she never received such a raise. (SMF ¶18; SMF ¶30). In 2005, plaintiff's compensation was $55,156, her billable hours were 681.7, and her work generated $79,772 in gross receipts. (SMF ¶21). Defendant never gave plaintiff or any other attorney in the Pittsburgh office a specific billable hour requirement and during the years in question the gross receipts generated by Plaintiff exceeded her salary. (CSF ¶23). Plaintiff was told she had no billable hour requirement and had no expectation that her ability to receive a raise would be tied to her production of billable hours. (SMF ¶ 25; CSF ¶¶ 24-25). Plaintiff received a weekly computation of her billable hours and the firm receipts based on those billings, but she did not know why she was receiving such information and did not save such information. (SMF ¶ 27).

In December 2004, Winikoff advised Plaintiff she would be receiving a raise of $2 per hour, which would have increased her wages to $48 per hour. (CSF ¶182). Plaintiff's did not receive the raise in her January 2005 paycheck. (CSF ¶182). Plaintiff felt she was entitled to the raise. (SMF ¶ 28). When she asked Winikoff about the discrepancy, Winikoff explained that the Compensation Committee had denied his request to raise Plaintiff's hourly rate because she was perceived as unproductive and not profitable. (SMF ¶38; CSF ¶30). During this conversation Winikoff indicated that one of the reasons conveyed for her unproductiveness was her part-time status as a working mother, which was evidenced by a comment made by Charles Katz ("Katz"), a partner in defendant's Philadelphia office. (CSF ¶30). Winikoff told Plaintiff that Katz had asked him"what can we do to make sure she [plaintiff] doesn't come back from maternity leave, because when women have babies they lose their focus." (Plaintiff's Brief in Opposition to Summary Judgment, pg. 2; CSF ¶30). Katz was not a member of the Compensation Committee in 2004 and did not have any direct participation in the Committee's decision about whether to give plaintiff a raise. He may have had indirect influence with members of the Committee because he was a partner, had been on the Compensation Committee in years past, and had been in charge of marketing in the recent past. (SMF ¶40-42; CSF ¶41-42). Other than plaintiff's recollection of the Katz' comment as recounted by Winikoff, plaintiff has no direct or circumstantial evidence suggesting or implying that Katz exercised any such influence with regard to the setting of her wages for 2005.

In February of 2005 plaintiff mailed a memorandum to Barry Mulher ("Mulher"), a member of defendant's compensation and management committees, complaining of an offensive email that Winikoff had forwarded to her seven weeks earlier on December 20, 2004. (SMF ¶31; SMF ¶43). The email, which contained "inappropriate sexually oriented material," violated defendant's sexual harassment policy. (SMF ¶108; CSF ¶213). Plaintiff's failure to receive a raise admittedly contributed to her decision to report the December 20, 2004, email. (CSF ¶52). After plaintiff was told that she was not profitable because of her status as a part-time working mother, she determined that Winikoff's email was another example of how defendant treated women and working mothers. (CSF ¶52).

Defendant maintained Human Resources policies and procedures that contained an equal opportunity and non-discrimination policy, which directed an employee to make any complaints about conduct in violation of the policy to a management committee member or to the Director of Human Resources. (SMF ¶55). Plaintiff was familiar with the policy and the mandated procedures thereunder. (SMF ¶55). Mulhern, a management committee member, first attempted to respond to plaintiff's February 2005 memorandum on April 28, 2005. Plaintiff was unavailable and Mulhern left a message on her voice mail. On May 23, 2005, Mulhern scheduled a meeting with plaintiff for May 27, 2005. (SMF ¶56-58).

During the May 27, 2005, meeting plaintiff explained that she had received between five and eight other offensive emails from Winikoff prior to December 20, 2004, but she had not retained those emails. (SMF ¶63-65). Plaintiff did produce one other offensive email that Winikoff had sent to Karen Pepke, a former secretary, in October of 2004. (SMF ¶62). In addition to the emails, she explained that she had perceived some of Winikoff's actions and words as offensive as well. (SMF ¶71).

Specifically, Plaintiff informed Mulhern about instances in which Winikoff had commented on her physical appearance, told sexually explicit stories, or made her uncomfortable through his actions. (SMF ¶71-76). Plaintiff told Mulhern about an instance in which Winikoff explained to a group of women, including plaintiff, graphic details of his exploits in hiring prostitutes when he was younger. (CSF ¶185). Plaintiff also complained of comments that Winikoff made, including his reference to her as "the lovely Jill Nolan," which he on occasion made while on the phone with a client. (SMF ¶74). Additionally, plaintiff recalled an instance at a marketing event in which Winikoff put his arm around Plaintiff and whispered in her ear, making her uncomfortable. On another occasion Winikoff had remarked to Katz that "Jill is a strong woman. I really like strong women." (CSF ¶187; SMF ¶84). While planning to attend another marketing event, plaintiff asked what she should do and Winikoff told her to "just show up and smile pretty." (CSF ¶184). The comment was made in front of a client. (CSF ¶184). On yet another occasion, Winikoff told plaintiff that she looked "lovely in the sunshine"while she was in his office for a meeting and directed her not to close the window blinds. (CSF ¶188). Also, plaintiff reported that Winikoff had promised her a raise and then told her that the Compensation Committee referred to her as unprofitable and Katz had made a negative comment to Winikoff in the past about working mothers. (SMF ¶71).

Prior to meeting with Mulhern, Plaintiff had never told Winikoff that she perceived his behavior as offensive. Nor had she alerted Human Resources or a member of the Management Committee about any of these events. (SMF ¶77; SMF ¶86-87). She likewise never complained to Winikoff or anyone else in management about receiving offensive emails; nor did she talk to or complain to other recipients about receiving them. (SMF ¶¶ 68, 70, 77).

In addition to these occurrences, Plaintiff also recalled two other instances that occurred while she was under Winikoff's supervision. First, on February 14, 2005, Winikoff referred to a candidate for a vacant secretarial position as "slow" and commented that "she...looks like a slug." (SMF ¶89). Second, Katz called Plaintiff and requested her to change her voice-mail greeting so that callers would not be informed of her part-time status; during this conversation Katz did not explicitly tell plaintiff he did not approve of her part-time working arrangement and plaintiff continued to work part-time thereafter. (CSF ¶179). Plaintiff was unable to recall any other instances when Winikoff made inappropriate or offensive comments or engaged in other conduct she found to be offensive. (CSF ¶¶ 81, 85).

Even though marketing was not a requirement of Plaintiff's job, plaintiff periodically attempted to market her services by sending emails within the firm asking for work, asking about ways to obtain work from the firm's existing clients and contacting individuals outside the firm in order to gain additional work. (CSF ¶¶ 98, 112). Plaintiff participated in an October 2004 conference with Lombard and Deb Matherne as part of developing a worker's compensation plan for the Pittsburgh office. (SMF ¶114). Plaintiff initiated the call through the assistance of Winikoff, and a partner, Jane Lombard ("Lombard"), indicated she would talk to Katz about implementing plaintiff's suggestions. (CSF ¶ 114). Plaintiff attempted in other ways, both before and after her meeting with Mulhern in May of 2005, to increase her billable hours through her marketing efforts, and specifically sought to obtain a client contact with Home Depot, which was one of Winikoff's clients. (CSF ¶196). Plaintiff was not informed until January of 2006 that the firm would have a conflict with such an arrangement because of its representation of Lowe's, a Home Depot competitor. (CSF ¶196).

Additionally, in 2004, while plaintiff was going through a high risk pregnancy with her second child, Lombard learned that plaintiff was not planning on attending a scheduled hearing because of a doctor's appointment. Lombard called plaintiff and told her to cancel the doctor's appointment and attend the hearing. (CSF ¶181). Plaintiff explained that it was an emergency appointment, and Lombard responded that "if you're that high risk, they'll see you any time, you must go to the hearing." (CSF ¶181). Although Plaintiff ultimately was able to keep her appointment, she felt that Lombard's directive evidenced discriminatory amicus against her status as a part-time working mother. (CSF ¶181). Plaintiff was not prohibited from scheduling doctor's appointments during her working hours, and although she did so infrequently, she did so on a few other occasions. (SMF ¶¶ 106, 107).

Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on June 13, 2005. (SMF ¶95). She charged she was subjected to a hostile work environment and defendant discriminated against her on the basis of her status as a part-time working mother. (SMF ¶98). Defendant decided not to renew Winikoff's employment contract at the end of 2005. (CSF ¶175). Plaintiff nevertheless continued to work for defendant on a part-time basis until March of 2007, at which time she resigned and filed a new charge based on a constructive discharge. (CSF ¶193).

Plaintiff claims she was subject to retaliation on several occasions after complaining to Mulhern and filing her EEOC charge. One such incident occurred shortly after she filed her charge, when Winikoff entered her office and began yelling about the assertions she made in the charge. (CSF ¶192). Another incident occurred in December of 2005 when Jeffery McCarron ("McCarron"), a partner at the Philadelphia office, had a discussion with plaintiff to determine what issues if any remained after Winikoff's departure. The discussion touched on plaintiff's relationship with co-workers after she had filed her complaint. Plaintiff retained an understanding that she was resented by her fellow workers for having filed the suit and McCarron said that "if he were [plaintiff], he would have quit and would not be working at the firm." (CSF ¶193; Reply to CSF ¶ 200). McCarron testified that he said in response to plaintiff's expressed concerns about strained relationships with co-workers that "if your so unhappy, why would you want to continue working at the firm?" (RCSF ¶ 200). Plaintiff also broached the rumored "Katz" statement about women loosing their focus after they have babies. McCarron dismissed the statement as being silly or stupid. McCarron further indicated that such a comment would not have had anything to do with plaintiff not receiving a raise in January of 2005, because Katz was not on the Compensation Committee nor was he on the Management Committee or plaintiff's supervisor. (CSF ¶200; RCSF ¶ 200).

Lombard came to review plaintiff's files after she made a complaint to McCarron at their December 2005 meeting that she was not receiving enough work to make her profitable. Lombard was plaintiff's supervisor at the time and also the head of worker's compensation, and thus had the right to do so. Upon inquiry, Lombard indicated she was also going to review Copetas' files as well, but she did not review his files. Copetas never complained about not having enough work to do. (CSF ¶ 194; RCSF ¶ 194). After the December 2005 meeting with McCarron, plaintiff received additional worker's compensation assignments. She rejected at least one assignment and had days where she was slow but did not voice a concern about it to anyone in management. (CSF ¶ 210; RCSF ¶ 210).

Copetas received a GAB Robbins account from Attorney Pauciullo. Attorney Pauciullo directed Copetas to handle the file because he had prior experience with the adjuster. Copetas also received some SRS cases directly, although plaintiff and Copetas previously had divided SRS cases based on a geographical division they had agreed to among themselves. Copetas received a Lowe's file from Lombard with direction for him to handle that specific file and develop a budget estimate for the case. Copetas took the opportunity to announce through an office email that per Lombard he was to handle all new Lowe's files, notwithstanding that Lombard's email assigned only the one specific file to Copetas. Plaintiff did not question Copetas about his self-asserted position of control over incoming Lowe's files. (CSF ¶ 197; RCSF ¶ 197). She did send an email to Lombard asking if there was anything wrong with her work, but did not receive a response to it.

Plaintiff offered to assist with asbestos work. John Argento, a Philadelphia partner, thanked plaintiff for her email offer. Plaintiff did not thereafter talk to Argento about such work. When asbestos work was not provided to plaintiff, she formed the belief that her offer of assistance had been rejected or ignored. (CSF ¶ 198; RCSF ¶ 198).

Lombard complained to McCarron that plaintiff's part-time schedule was not conducive to Lombard's staffing needs and plaintiff did not maintain any flexibility in her schedule. McCarron learned that part of this was attributable to child care issues. McCarron formed the belief that plaintiff's constraints were extreme as compared to other attorneys with constraints resulting from the need to provide child care. Plaintiff did occasionally change her schedule of working days when needed, but could not recall how often she had done so in the recent past. (CSF ¶¶ 202, 203; RCSF ¶¶ 202, 203).

Title VII of the Civil Rights Act of 1964 prohibits discrimination "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. § 2000 e-2 (a) (1). The prohibition "not only covers 'terms' and 'conditions' in the narrow contractual sense, but 'evinces a congressional intent to strike at the entire spectrum of disparate treatment of [protected employees] in employment." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). "Title VII is violated 'when the workplace is permeated with discriminatory [gender-based] intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Ocheltree v. Scollon Productions, Inc., 335 F.3d 325, 331 (4th Cir. 2003) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Employees are entitled to protection from "working environments [that are] so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers." Meritor, 477 U.S. at 66 (quoting Rodgers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).

Specifically, a prima facia case of a hostile work environment has the following elements: (1) the employee suffered intentional discrimination because of a protected trait; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 276-77 (3d Cir. 2001). Proffering sufficient evidence to meet each element of a hostile work environment claim generally precludes summary judgment in the defendant's favor and permits the plaintiff to proceed to trial. Id. at 280-281.

In analyzing whether a plaintiff has established a prima facia case, the court cannot confine its analysis to "the individual pieces of evidence alone," but must "view the record as a whole picture." Id. at 276 (citing Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir. 1997)). This is because "[a] play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual ...

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