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Lerew v. AT&T Mobility LLC

April 22, 2009

LIZBETH LEREW, PLAINTIFF
v.
AT&T MOBILITY LLC, FORMERLY KNOWN AS CINGULAR WIRELESS, LLC, DEFENDANT



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

We are considering a motion for summary judgment filed by the Defendant, AT&T Mobility LLC ("AT&T"). Plaintiff, Lizbeth Lerew ("Lerew"), filed this lawsuit alleging: (1) a hostile work environment in violation of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); (2) violation of her rights under the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951 et seq. ("PHRA"); (3) constructive discharge and (4) intentional infliction of emotional distress ("IIED").

We will examine the motion under the well-established standard. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d. Cir. 2008). Upon review of the motion, the briefs, and the record, we will grant summary judgment as to the IIED and constructive discharge claims, and deny summary judgment as to the hostile work environment claims.

II. Background

Lerew began working for AT&T in November of 2004 at its store in Capital City Mall, Camp Hill, Pennsylvania. Lerew alleges she was harassed by a co-worker, Scott Ferguson, beginning in February 2005. It appears from the record that the she was allegedly harassed off-and-on until January of 2006, at which time, she complained to her employer and was transferred to AT&T's store in Carlisle, Pennsylvania. Plaintiff resigned her position at the Carlisle store in August of 2006, some seven months after her transfer.

III. Discussion

A. Hostile Work Environment Claim

Title VII of the Civil Rights Act of 1964 and the PHRA prohibit an employer from discriminating "against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex or national origin." 42 U.S.C § 2000e-2(a)(1).*fn1 Hostile work environment harassment occurs when "unwelcome sexual conduct unreasonably interferes with a person's performance or creates an intimidating, hostile, or offensive working environment." Weston v. Pennsylvania Dep't of Corrections, 251 F.3d 420, 425-26 (3d Cir. 2001). In order to prevail on a claim arising from hostile working conditions, an employee must show that "(1) the employee suffered intentional discrimination because of [her] sex, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the [employee], (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position, and (5) the existence of respondeat superior liability." Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007)(quoting Weston, 251 F.3d at 426). For purposes of this motion, AT&T challenges Lerew's ability to meet the second and fifth elements, arguing that the evidence fails to establish a genuine issue of fact that respondeat superior liability exists and that the harassment was severe or pervasive. Def.'s Br. In Supp. at 12.

As we believe there is a genuine issue of fact as to whether the alleged harassment was severe or pervasive, we will not address this portion of Defendant's motion. Instead, we will address AT&T's contention that the evidence does not support respondeat superior liability.

When a co-worker is the source of alleged harassment, as it is in this case, in order to establish the fifth element "a plaintiff must demonstrate that the employer failed to provide a reasonable avenue for complaint, or, if the employer was aware of the alleged harassment, that it failed to take appropriate remedial action." Weston, 251 F.3d at 427. An employer is aware of harassment if a plaintiff proves that "management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment." Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990). Constructive notice exists in two situations: (1) management-level personnel were provided with enough information to "raise a probability of sexual harassment in the mind of a reasonable employer," or (2) "the harassment is so pervasive and open that a reasonable employer would have had to be aware of it." Kunin v. Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. 1999). Here, the parties disagree on when AT&T received notice concerning sexual harassment, and whether AT&T promptly and adequately remedied the situation after receiving notice. Lerew does not contend that AT&T failed to provide a reasonable avenue for complaint. Pl.'s Br. In Opp'n at 11. Instead, she argues that a genuine issue of fact exists as to when AT&T had notice and whether it took appropriate remedial measures. Id. at 11-12. AT&T contends that it received actual notice of the harassment in January of 2006, and that it promptly remedied the situation by allowing Lerew to transfer to another store.

Def.'s Br. In Supp. at 24.

In most situations, the focus will be on the "timing and nature of the employer's response." Andreoli, 482 F.3d at 644. While the evidence is not overwhelming, we believe there is a genuine issue of fact on whether AT&T received notice prior to January of 2006, and whether AT&T took prompt and adequate remedial measures. Since this action largely boils down to an issue of credibility, we conclude a ...


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