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Kelleher v. Durham D & M

October 15, 2009

KATHLEEN KELLEHER
v.
DUNHAM D & M, L.L.C.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Plaintiff Kathleen Kelleher alleges that defendant Durham D & M, L.L.C. violated her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 955 et seq. Defendant denies any liability for the alleged sexual harassment and has filed a motion for summary judgment which is now ripe for consideration. Presently before me are defendant's brief in support of its motion for summary judgment, plaintiff's response and defendant's reply. For the following reasons I will grant defendant's motion for summary judgment on both claims.

BACKGROUND

Defendant is a limited liability corporation that provides school bus services. Plaintiff was hired by defendant as a bus driver in August 1990. The events giving rise to this lawsuit began in February 2004, when plaintiff's co-worker*fn1 , Daniel Forker, invited her to Valentine's Day dinner. Plaintiff declined the invitation and made clear that she did not desire to date Forker. Almost two years later, in December 2005, Forker gave plaintiff a gold necklace that contained three diamonds representing the past, the present and the future. At the time, plaintiff expressed to Forker her hesitation over accepting a gift with such romantic overtones. Forker justified the gift by saying "I just really want you to have this because you are a good friend to me." Kelleher Dep. 148:21-149:6, Mar. 25, 2009. Plaintiff accepted the necklace but never wore it.

In August 2006, plaintiff was transferred from her bus driving position to the dispatch office where she was responsible for answering the phones and handling paperwork. This new role put plaintiff in closer contact with Forker, who also worked in the dispatch office. Not long after plaintiff's transfer to the dispatch office, Forker overheard plaintiff talking with Rose Spano, a co-worker, about plaintiff's difficulty in paying her children's tuition. Forker called plaintiff at home that night and offered her a $250 loan. Plaintiff accepted the offer and agreed to repay the loan at $50 per week.

In September 2006, Forker overheard another conversation between plaintiff and Spano during which they discussed a co-worker named Henry Stokes. In response, Forker stated to plaintiff "[o]h, you want a date with Henry. I'm your friend, I'll go tell him." Compl. ¶ 15. Over plaintiff's objection, Forker told Stokes that plaintiff wanted to date him. Shortly thereafter, Forker apologized for his conduct. When plaintiff refused to accept his apology, he demanded that she repay the $200 remaining on her loan. Plaintiff repaid the loan in full and returned the necklace Forker had given her the previous Christmas. After a verbal exchange, Forker threw the necklace into a nearby trash can. A few days later, Forker again apologized for his behavior, this time sending a flower basket to plaintiff.

Later in September 2006, Forker was unsuccessfully trying to reach a bus driver by radio.

Plaintiff, attempting to help, called the bus driver on his cell phone and handed the phone to Forker. Forker reacted angrily, accusing plaintiff of being romantically involved with the bus driver.

In October 2006, plaintiff was assigned to work the 5:30 a.m. to 5:00 p.m. shift. She was recommended for this shift by Forker, who began to hang around the dispatch room after his shift ended at 1:30 p.m. Later in October, plaintiff was promoted to the position of Dispatcher. Plaintiff alleges that from October 2006 until March 2007, Forker made "offensive remarks about [her] breasts, buttocks, and underwear." Compl. ¶ 19. Those offensive remarks included a statement in November 2006 that "[plaintiff] has nice lips . . . I mean both sets." Compl. ¶ 21. Then, in December 2006, Forker and Plaintiff got into a work-related argument during which Forker called plaintiff a "bitch." Compl. ¶ 22. Plaintiff reported the December incident to her supervisor, Bob Woodhead.

In February 2007, plaintiff had a package of recently-purchased underwear on the floor of her office. Forker commented that he would like to see plaintiff wear the underwear. Later that week, Forker told plaintiff that "he had not had sex in awhile and asked whether she would be available." Compl. ¶ 23. Upon seeing plaintiff become visibly upset, Forker laughed and acted as though his statement were a joke. During that same month, Forker had a conversation with an angry parent after which he hung up the phone and stated "it's not my problem you didn't get laid last night . . . all women are bitches." Compl. ¶ 24. Those statements were made in the presence of plaintiff and another female co-worker.

On March 5, 2007, plaintiff received a nightgown that she had purchased from a co-worker who was an Avon representative. While the nightgown was still in its package, she showed it to a female co-worker. Forker took the nightgown out of her hand, held it up to himself suggestively and stated "my name is Kathy." Compl. ¶ 25. About an hour later, Forker exclaimed "look Kathy!" Compl. ¶ 26. When she turned to face him, he directed her attention downward toward the outline of an erection in his pants. She immediately turned away and avoided him for the remainder of the day. The next day, Forker apologized to plaintiff, explaining "I just wanted you to know that I could still get it up." Compl. ¶ 26.

On March 12, 2007, plaintiff reported "all the details of the sexual harassment" to LeRoy Fisher, defendant's "Safety Supervisor." Compl. ¶ 27. Fisher informed plaintiff that she would have to speak with Rob Harding, the general manager, or Woodhead about her complaints. The next day, she addressed her complaints to Harding and told him that she intended to confront Forker. Harding agreed with her plan. On March 16, 2007, before plaintiff could confront Forker, an ice storm caused several schools to close early. The early closures caused Forker to become agitated and in response to a question from a co-worker about whether a particular school was closing, Forker stated "I don't know and I really don't fucking care." Compl. ¶ 29. Plaintiff interceded, stating "grow up . . . all you had to do was answer the question." Kelleher Dep. 177:16-19, Mar. 25, 2009. In response, Forker charged at plaintiff aggresively while screaming obscenities. Woodhead witnessed the incident and immediately told plaintiff to report to Fisher's office upstairs. There, plaintiff informed Woodhead and Fisher that she was unwilling to work around Forker in light of the aggressive behavior and sexual harassment directed at her. Woodhead informed her that if she wanted to separate herself completely from Forker, she would have to return to driving a bus because Forker was unqualified for any job except dispatcher and would therefore have to remain in the office.

On March 19, 2007, after reiterating that she felt uncomfortable working around Forker, plaintiff was reassigned to the 11:00 a.m. to 7:30 p.m. dispatcher shift. The next day, she informed management that she would be unable to work the later shift because her young children required care in the afternoon and the new shift would still require her to overlap with Forker for two hours each day. In light of her obligations to her children and her interest in being separated from Forker, she requested reassignment to her old bus driving route. She also asked Woodhead what was being done about her complaint against Forker, and was initially told that nothing could be done until she confronted Forker herself. After additional prodding from plaintiff, however, Woodhead agreed to speak with Forker. Woodhead's discussion with Forker resulted in a three day suspension for Forker. The suspension was shortened to one day, however, because of need for additional workers in the dispatch office. Additionally, plaintiff was on vacation at the time that Forker returned to work so one of the purposes of the suspension, to separate plaintiff and Forker for three days, was moot. However, plaintiff called the office to ask a question about her bus, and she was surprised to hear Forker answer the phone. After expressing to Harding her disapproval of the shortening of Forker's suspension, plaintiff called Maryanne Clarke in Durham's Human Resources department to complain about the sexual harassment and discrimination. She was told to fax a written statement of her complaint, which she did immediately. The next day, Harding informed plaintiff that the company had investigated her allegations and determined that they were unfounded.

Beginning in 2008, plaintiff was again asked to work in the dispatcher's office for one hour each morning prior to leaving for her bus route. This work put her back in proximity with Forker but she admits that she has been subject to no unwelcome conduct since the meeting resulting in Forker's suspension. Kelleher Dep. 191:13-192:1, Mar. 25, 2009. As of plaintiff's deposition in March 2009, she had advanced two additional complaints. First, the words "Kathy is a slut" were written on the women's restroom wall, along with plaintiff's bus number. Kelleher Dep. 84:1-4, Mar. 25, 2009. Plaintiff makes no allegation as to who was responsible for the writing. Second, plaintiff notes that Forker walks for a few minutes ...


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