The opinion of the court was delivered by: Chief Judge Kane
Pending before the Court are Defendant Norfolk Southern Corporation and Defendant Norfolk Southern Railroad Corp.'s ("Defendants") Motion for Summary Judgment and Brief in Support (Doc. Nos. 69, 70), Plaintiff Joyce Robinson's Brief in Opposition (Doc. No. 80), and Defendants' Reply Brief (Doc. No. 81). The motions have been fully briefed and are ripe for disposition. For the reasons that follow, the Court will deny Defendants' Motion for Summary Judgment as to Plaintiff's Title VII claim for discrimination in the course of her employment and Plaintiff's hostile work environment claim for discrimination on the basis of her race. The Court will stay the case for further briefing as to whether Plaintiff has exhausted her Title VII termination claims before the Pennsylvania Human Rights Commission and the Equal Employment Opportunity Commission. Finally, the Court will grant Defendants' Motion for Summary Judgment on the balance of Plaintiff's claims.
I. FACTUAL BACKGROUND*fn1
Plaintiff Joyce Robinson is a resident of Harrisburg, Pennsylvania. Defendants Norfolk Southern Corp. and Norfolk Southern Railway Co. ("Defendants") are Virginia corporations with principal places of business in Norfolk, Virginia. Plaintiff has worked in the railroad industry since 1977, when she began employment with Conrail. (Doc. No. 80-2 ¶ 3.) She became a locomotive engineer in 1994. (Id.) Plaintiff became an employee of Defendant Norfolk Southern in June 1999, on the "split date" when Norfolk Southern took over parts of Conrail's operations, including those in the Harrisburg area, where Plaintiff was based. (Doc. No. 71 ¶ 3).*fn2
As an engineer, Plaintiff participated in a yearly two-day safety rule training class, which including training on harassment. (Id. ¶ 8-9.) Defendants had EEO policy postings on the wall and a written policy on harassment and discrimination, both of which Plaintiff can recall. (Id. ¶ 10.) Based on Defendants' training sessions, Plaintiff was aware that Defendants had a harassment reporting procedure in place that involved reporting any incidents to a supervisor and then to human resources, and if the supervisor was the accused harasser, to the next supervisor up the chain. (Id. ¶ 11.)
Over the course of her employment, Plaintiff alleges that she was subject to a number of discriminatory acts based on her race or her sex. On August 19, 2001, Plaintiff was sent home for failing to wear proper footwear while operating a train, thereby losing a day's pay. (Doc. No. 80-2 ¶ 7.) Plaintiff alleges a white male co-worker merely received a noncompliance letter for the same infraction. (Id.)
In July 2003, after failing to wear safety glasses, Plaintiff was placed in a safety training program. (Doc. No 80-2 ¶ 8.) Plaintiff alleges that a male co-worker merely received a letter of noncompliance for the same infraction. (Id.)
Plaintiff also alleges that over the course of her employment, she was repeatedly not allowed to use the ladies bathroom in Defendants' Allentown facility, instead being told to either use the men's bathroom or to go off-site to use the bathroom. (Doc. No. 80-2 ¶ 12; Doc. No. 81, at 12.)
On August 5, 2003, Plaintiff's car was vandalized while in the Harrisburg, Pennsylvania train yard. (Doc. No. 80-2 ¶ 9.) The headlights were smashed and the hood of the car was dented. (Id.)
On March 9, 2004, Plaintiff noticed a flier on the bulletin board of her workplace that had intimidating remarks written about her on it, including racially motivated statements. (Doc. No. 80-2 ¶ 10.)
On March 19, 2004, Plaintiff's car was again vandalized in the Harrisburg, Pennsylvania train yard. (Doc. No. 80-2 ¶ 11.) Her car had carvings of "KKK" and "white power" on both doors, and the roof had been hit. (Id.)
Defendants were vigilant in investigating the acts of vandalism against Plaintiff. When Plaintiff's car was vandalized at the Harrisburg yard in August 2003, Plaintiff reported it to the Norfolk Southern police. (Doc. No. 71 ¶ 124.) The Norfolk Southern police investigated, but were unable to find the culprit. (Id.) Likewise, when Plaintiff found a flyer on a bulletin board in March 2004 with offensive comments, Plaintiff again reported the comment to Norfolk Southern police. (Id. ¶ 126) The Norfolk Southern police investigated, as did Defendants' EEO office. (Id. ¶ 127.) Nearly two dozen employees were interviewed in the investigation, and handwriting samples were obtained from about 15 employees and reviewed by an independent expert. (Id. ¶ 128.) However, the investigation was unable to determine a culprit. (Id.) When Plaintiff's car was vandalized in March 2004, she again reported it to Norfolk Southern Police and complained to a representative of her union. (Id. ¶ 129.) Again Norfolk Southern police and the EEO office investigated: nearly 50 employees were interviewed, handwriting samples were obtained and analyzed by an independent expert, posters were put up, and security cameras were installed at the yard. (Id.)
Plaintiff's employment was terminated on July 15, 2005. (Doc. No. 71 ¶ 35.) Defendant claims that Plaintiff's termination was related to Plaintiff's involvement in a train derailment in March 2005. (Id. ¶ 35.) Plaintiff alleges that the termination was strictly gender and racial based discrimination. (Doc. No. 80-2 ¶ 15.) An investigative hearing was held concerning the train derailment, wherein Plaintiff was determined to be guilty of:
(1) failure to stop short of and running through a switch; (2) failure to announce that the train was in emergency; (3) failing to inspect or to arrange for inspection of train after emergency brake applied and prior to moving; (4) putting the train in reverse without permission resulting in derailment of the locomotive, and doing so without protection or arranging for protection of the rear of the train; and (5) causing a delay of operations.
(Doc. No. 71 ¶ 36.) Plaintiff appealed her termination to a Public Law Board, which unanimously affirmed her termination on June 30, 2006. (Id. ¶ 42.) In determining that termination was an appropriate discipline, the Public Law Board noted that Plaintiff "had numerous minor and serious rules violations" and that she had "been disciplined eight more times in a period of two and one-half years." (Id. ¶ 43.) These disciplinary actions included suspensions and various other reprimands for acts such as passing a signal in December 2001, to the improper handling of a train in January 2004. (Id. ¶¶ 43, 54.)
Over the course of her employment, Plaintiff filed three separate verified complaints against her employer with the Pennsylvania Human Rights Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"). On September 25, 2003, Plaintiff filed a verified complaint against Defendants with the PHRC and the EEOC. (Doc. No. 71 ¶ 81.) The 2003 complaint contained two counts of harassment based on sex discrimination and race discrimination. (Id.) Plaintiff's September 2003 complaint to the PHRC was based on alleged misconduct where white male employees were not disciplined for the same acts as Plaintiff. (Id. ¶ 82.) On September 26, 2006, the PHRC issued a letter denying Plaintiff's request for a preliminary hearing because her charge was not substantiated. (Id. ¶ 85.) On January 17, 2007, the EEOC issued a right to sue letter based on the Plaintiff's 2003 complaint. (Id. ¶ 86.)
On August 3, 2004, Plaintiff filed a second verified complaint against Defendants with the PHRC and dual-filed with the EEOC. (Doc. No. 71 ¶ 87.) The complaint contained four different counts. (Id.) The first two counts were sex and race discrimination claims based on Plaintiff's 30-day suspension in May 2004 for failing to properly turn in a medical excuse relating to a January 2004 eye injury. (Id. ¶¶ 87-88.) The second two counts were retaliation claims for discrimination based on Plaintiff's suspension. (Id.) Plaintiff claimed that Defendants' employees had retaliated against her for her earlier PHRC complaint in 2003. (Id.) On September 26, 2006, the PHRC issued a letter denying Plaintiff's request for a preliminary hearing because the charge was not substantiated. (Id. ¶ 91.) On January 17, 2007, the EEOC issued a right to sue letter based on Plaintiff's 2004 amended complaint. (Id. ¶ 92.)
In November 2005, Plaintiff filed her third verified complaint against her employer with the PHRC and dual-filed with the EEOC. (Doc. No. 71 ¶ 93.) The 2005 complaint contained four counts based on Plaintiff's termination from Defendant in July 2005. (Id.) Counts 1 through 4 asserted her termination was due to Plaintiff's gender, age, and race -- and that her termination was in retaliation for her two earlier PHRC complaints. (Id.) Neither the PHRC nor the EEOC have issued a determination or a right to sue letter based on the 2005 complaint.
II. PROCEDURAL BACKGROUND
On April 4, 2007, Plaintiff filed an eleven-count Complaint in the Superior Court of New Jersey. (Doc. No. 1, Ex. A.) Plaintiff's complaint alleged counts for wrongful discharge; breach of contract; breach of the duty of good faith and fair dealing; a claim under the New Jersey Law Against Discrimination; a claim under the Federal Employers Liability Act; claims under Title VII for discrimination in employment, termination, and a hostile work environment; and claims for intentional and negligent infliction of emotional distress. (Id.)
Defendants removed the case to the United States District Court for the District of New Jersey on June 8, 2007.*fn3 (Id.) On August 30, 2007, with the consent of the parties, the New Jersey District Court transferred the case to this Court. (Doc. No. 15.) The case was then referred to Magistrate Judge Blewitt to allow the parties to conduct discovery. (Doc. No. 57.)
On July 2, 2007, while the case was pending in the District of New Jersey, Defendants filed a motion to dismiss. (Doc. No. 7.) On December 31, 2008, after the case had been transferred to this Court and at the conclusion of discovery, Defendants filed a motion for summary judgment accompanied by a brief in support. (Doc. Nos. 69, 70.) On February 12, 2009, after receiving an extension of time to file, Plaintiff filed a brief in opposition to summary judgment. (Doc. No. 80.) Finding that the legal arguments made in the motion to dismiss were incorporated in the motion for summary judgment and could be fully decided in an order addressing the summary ...