IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
February 4, 2010
EVA CARATTINI, PLAINTIFF,
WOODS SERVICES, INC. DEFENDANT.
The opinion of the court was delivered by: Eduardo C. Robreno, J.
This is a case of alleged employment discrimination based on a theory of hostile work environment and retaliation.
Plaintiff, Eva Carattini ("Carattini") was a client care worker. Defendant Woods Services, Inc. ("Woods"), is a notfor-profit residential services facility providing 24-hour care, education and training to children and adults with various types of disabilities. Plaintiff was employed by Woods from April 2007 to September 28, 2007. Before the Court is Woods' motion for summary judgment. For the reasons that follow, the motion for summary judgment will be granted.
The crucial events around which the lawsuit revolves occurred over a period of six days.*fn1 During the six day period, Plaintiff was allegedly harassed by a co-worker and immediately reported the incident to her supervisor, was interviewed twice by Woods' management, filed two EEOC complaints and a police report, was allegedly retaliated against by Woods and left Woods' employment. Because the events at issue occurred over such a narrow window of time, and some of the events overlap, an understanding of the undisputed chronology is helpful.
A. Day 1: Sunday - September 23, 2007
Plaintiff claims that Ned Bangura, a co-worker, grabbed her breasts and vagina while both were working in a laundry room. Plaintiff also claims that she screamed and exited the laundry room to go to a patient's room, but that Bangura followed her and continued to harass her.
Plaintiff contacted her supervisor, Abdullah Kanneh ("Kanneh"), and revealed the incident around 9:00 P.M. Kanneh told Carattini to report the incident to Woods' Human Resources Department.
B. Day 2: Monday - September 24, 2007
Carattini was not scheduled to work on that day. She met with Allegra Grant ("Grant"), a manager in Woods' Human Resources Department. Grant obtained a written statement from Carattini describing the events of September 23, 2007.
C. Day 3: Tuesday - September 25, 2007
Carattini was not scheduled to work on this day. Plaintiff signed her first EEOC charge alleging harassment based on the events of September 23, 2007.
D. Day 4: Wednesday - September 26, 2007
Carattini met again with Grant, answered additional questions and signed an additional statement regarding the September 23, 2007, incident. On this same day, Woods changed Plaintiff's work assignment to an assignment that would separate her from Bangura.
Carattini claims that when she appeared at two other buildings on the campus where she had been re-assigned, she was told by persons in charge that there were no positions available to her in these buildings.
Also on this date, Plaintiff filed a police report regarding the Bangura incident on September 23, 2007.
E. Day 5: Thursday - September 27, 2007
Grant interviewed Bangura to obtain his statement. Bangura denied the allegations. Grant began interviewing other witnesses to investigate Carattini's allegations. Plaintiff was scheduled to work on this day, but called out and did not come to work.
G. Day 6: Friday - September 28
Plaintiff was scheduled to work and met with Grant early in the day. Plaintiff claims that when she came to see Grant, Bangura was also there. Plaintiff claims there was no security for her and at that moment she became uncomfortable, nervous, stressed, anxious, feared for her safety and was unable to concentrate on her work-related assignments.
Carattini left Woods premises and resigned her position.*fn2 Also on this day, Plaintiff signed a second EEOC charge alleging retaliation.
At some point on September 28, 2007, Carattini was offered the seven to three shift in an all female building, where men are not permitted to work.*fn3
Distilled to its essence, Plaintiff's claim of discrimination is based on the September 23, 2007, incident with Bangura. Plaintiff's retaliation claim is based on the lack of work for her at the other buildings on September 26, 2007 and purportedly when she ran into Bangura at Grant's office on September 28, 2007. Of the five days which elapsed between the September 23, 2007, incident and Plaintiff's resignation on September 28, 2007, she only worked one full day. The record indicates that Plaintiff was paid for her regular shifts during the six day period in question.*fn4
III. MOTION FOR SUMMARY JUDGMENT
Woods moves for summary judgment on all claims. It argues that it cannot be held liable for any alleged harassment of Carattini because prior to September 24, 2007, it was not on notice of any alleged harassment towards Carattini, that once it learned of Carattini's complaint it took adequate remedial action immediately, including conducting a full investigation and offered her a different work assignment away from the alleged harasser. Woods further argues that Carattini has failed to produce evidence sufficient to support her claim of retaliation.
A. Summary Judgment standard
Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). A fact is "material" if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248-49. "In considering the evidence, the court should draw all reasonable inferences against the moving party." El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007).
"Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, 'the burden on the moving party may be discharged by showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (quoting Singletary v. Pa. Dept. of Corrections, 266 F.3d 186, 192 n.2 (3d Cir. 2001)). Once the moving party has thus discharged its burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in [Rule 56]-set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).
B. Count I - Hostile Work Environment*fn5
1. Hostile Work Environment Legal Standard
"Title VII of the Civil Rights Act of 1964 makes it 'an unlawful employment practice for an employer . . . to discriminate 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." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting 42 U.S.C. § 2000e-2(a)(1)). "When the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment," a hostile work environment exists and Title VII has been violated. Id. (internal quotation and citation omitted).
To establish a hostile work environment claim against Woods under Title VII, Carattini must establish the following five elements: "(1) [she] suffered intentional discrimination because of . . . her sex; (2) the discrimination was pervasive or [severe];*fn6 (3) the discrimination detrimentally affected [Carattini]; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) respondeat superior liability existed." Andreoli v. Gates, 482 F.3d 631, 643 (3d Cir. 2007); Knabe v. Boury Corp., 114 F.3d 407, 410 (3d Cir. 1997).
Defendant contends that Plaintiff is unable to establish the second and fifth prongs needed to sustain a hostile work environment.
2. Severe or Pervasive Prong
In support of her claim, Plaintiff points to the September 23, 2007, incident where Bangura purportedly grabbed her vagina and breasts.
To satisfy the second prong of a hostile work environment claim, "the harassment must be so severe or pervasive that it alters the conditions of the victim's employment and creates an abusive environment." Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001) (citing Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 67 (1986)).
A court should consider several factors in determining whether an environment is hostile or abusive, including "'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; [and] whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Harris, 510 U.S. at 23 (1993)).
Whether conduct is pervasive should be determined based on the totality of the circumstances. Harris, 510 U.S. at 23. Isolated or sporadic incidents, unless extremely serious, and offhand comments are not sufficient to sustain a claim. Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005).
Plaintiff's evidence, by definition, cannot show that she was harassed pervasively in that it is supported by only one incident. Nor does Bangura's single unwelcomed contact with Plaintiff's vagina and breasts, albeit totally inappropriate, rise to the level of severity required to support a claim for hostile work environment. See, e.g., Saidu-Kamara v. Parkway Corp., 155 F. Supp. 2d 436, 439-40 (E.D. Pa. 2001) (Joyner, J.) (granting summary judgment on hostile work environment claim when plaintiff asserted that her supervisor: (1) touched her breast, told her that she looked "fresh" and propositioned her to join him later that evening; (2) made suggestive comments about plaintiff's eyes and offered his financial assistance if plaintiff would go out with him; (3) removed a bottle of wine from his pants, offered plaintiff a drink and asked her to join him at a hotel where they could have a "good time;" and (4) patted plaintiff on the breast and buttocks after complimenting her on good work); Swanson v. Nw. Human Servs., Inc., No. 05-CV-3054, 2006 WL 3354145, at *3 (E.D. Pa. Nov. 30, 2006)(Tucker, J.)(no hostile work environment created where defendant told plaintiff he looked good in his jeans once, grabbed his buttocks and asked him on dates over a two month period); McGraw v. Wyeth-Ayerst Lab., No. 96-5780, 1997 U.S. Dist. LEXIS 20813, at *16-18 (E.D. Pa. Dec. 30, 1997) (Reed, J.) (supervisor's repeated requests for a date, kissing Plaintiff without her consent, "forcing his tongue into her mouth" on one occasion, and touching Plaintiff's face not severe enough to create hostile work environment); Bauder v. Wackenhut Corp., No. 99-1232, 2000 U.S. Dist. LEXIS 4044, at *13 (E.D. Pa. Mar. 23, 2000) (Buckwalter, J.) (allegations that supervisor grabbed plaintiff's buttocks and male co-workers discussed the location of plaintiff's tattoos were insufficient to establish a hostile work environment); see also Bowman v. Shawnee State Univ., 220 F.3d 456, 463-65 (6th Cir. 2000) (supervisor's rubbing employee's shoulders, grabbing buttocks, and offensive comments not pervasive or severe).*fn7
Under these circumstances, Carattini has failed to provide evidence from which a jury could find that her workplace was "permeated with discriminatory intimidation, ridicule, and insult, that [were] sufficiently severe or pervasive to alter the conditions of the victim's employment." Harris, 510 U.S. at 21. Accordingly, the Court will grant Defendant's motion for summary judgment regarding plaintiff's hostile work environment claim.*fn8
3. Respondeat Superior Liability Prong
Even assuming arguendo the harassment was pervasive or severe, Carattini cannot point to evidence sufficient to allow a jury to find that the fifth element, respondeat superior liability, has been established. An employer is not vicariously liable to a victim of sexual harassment when the harassment is done by a co-worker as opposed to a manager. Knabe, 114 F.3d at 411. The employer will only be liable for its own behavior vis-a-vis the harassment. Thus, Carattini must establish Woods' liability by showing that "management-level employees had actual or constructive knowledge about the existence of a sexually hostile work environment and failed to take prompt and adequate remedial action." Id.
a. Actual Notice of the Bangura Incident
It is undisputed that Woods first received actual notice of the Bangura incident when Carattini called her supervisor on September 23, 2007, and notified the Human Resources Department on September 24, 2007, that she was harassed by Bangura on September 23, 2007.*fn9
b. Constructive Notice of the Bueale Incident
To establish constructive notice, the plaintiff can either prove: (1) management-level employees 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). Focusing on the first possibility, "'a supervisor's knowledge generally will be imputed to the company for purposes of liability only if the supervisor is at a sufficiently high level in the company hierarchy.'" Anderson v. Deluxe Homes of Pa., Inc., 131 F. Supp. 2d 637, 651 (M.D. Pa. 2001) (quoting Bishop v. Nat'l R.R. Passenger Corp., 66 F. Supp. 2d 650, 667 (E.D. Pa. 1999)).
Carattini claims she reported the Bueale incident in early September 2007 to Kanneh, who failed to report the incident to Human Resources. The record indicates that Kanneh did not transmit the complaint up the chain of command. Nor was the episode so open or notorious that Woods' management should have become aware of it. Under these circumstance, it is unlikely Woods had constructive notice of the harassment.
c. Remedial Action
Plaintiff argues that Woods had knowledge of the Bueale incident in early September 2007, but failed to take any remedial action. Consequently, Plaintiff contends that Defendant was on notice of a hostile work environment and failed to prevent the Bangura incident.
Prompt remedial action is conduct reasonably calculated to prevent further harassment. Bonenberger v. Plymouth Twp., 132 F.3d 20, 26 (3d Cir. 1997) (an employer is liable for a co-worker's harassment if the employer was "negligent or reckless in failing to train, discipline, fire or take remedial action upon notice of harassment").
Concerning the Bueale incident in early September 2007, although no remedial action was taken afterwards, Plaintiff admits that, after the one incident, Bueale did not harass her again. In fact, Plaintiff indicated to Grant that she no longer had any issues with Bueale and did not express any desire to be separated from him. (Pl.'s Dep. at 130:7-18.) Therefore, Defendant cannot be liable where no harassment occurred after the incident was reported to Woods' management.
Concerning the Bangura incident, immediately after receiving actual notice from Carattini of the Bangura incident, Woods took effective action. Grant met with Bangura and Bueale and questioned them about the allegations. Grant also met with each person Carattini identified as a witness and other individuals who worked with Carattini. Not one person claimed to have witnessed the alleged harassment by Bueale an Bangura. Moreover, immediately after Plaintiff notified Defendant, Woods' management reorganized Carattini's work schedule so that she would no longer have to work with Bangura. Finally, Woods separated Plaintiff from Bangura by temporarily reassigning her to different buildings and offering her a different shift in an all female building. Weston, 251 F.3d at 427 ("when an employer's response stops the harassment, there can be no employer liability under Title VII"); Kunin, 175 F.3d at 294.
Plaintiff attempts to impute liability on Woods for failing to prevent the Bangura incident because of Defendant's actual notice of the Bueale incident. In other words, Plaintiff argues, because Kanneh, Carattini's immediate supervisor, had been told by Carattini of Bueale's harassment but failed to take any remedial action, Woods is liable for Bangura's subsequent harassment of Plaintiff. This argument is unavailing.
Even assuming that Woods had actual or constructive notice of the Bueale incident, Woods was not on notice that Bangura, a different actor, would commit an act of intentional harassment against Carattini, at a later date and under different circumstances.
It is clear to the Court that Woods' remedial actions were undertaken promptly and were sufficient to prevent further harassment. See Huston v. P & G Paper Prods. Corp., 568 F.3d 100 (3d Cir. 2009) (summary judgment affirmed where employer launched an investigation on the same day the complaint was filed, the plaintiff was moved to a different location so that she would not have to work with alleged harassers and management interviewed all the individuals plaintiff mentioned in her complaint); McCloud v. UPS, Inc., 328 Fed. Appx. 777 (3d Cir. 2009)(nonprecedential) (summary judgment for employer affirmed where employer investigated claim within 24 hours of plaintiff's report and interviewed all the employees in the area, even though no one was punished because the investigation was inconclusive).
Thus, Carattini cannot point to evidence sufficient to allow a jury to find that the fifth element, respondeat superior liability, has been established. Because Plaintiff cannot prove the second and fifth prongs of her hostile work environment claim, summary judgment will be granted in favor of the Defendant.
C. Count II - Retaliation
Plaintiff argues that Woods retaliated against her for her complaints of sexual discrimination and that Woods is therefore liable under Title VII. She claims that, after she complained of Bangura's sexual harassment, she was transferred from one building to the next where she was not needed and where she was told to return to the Human Resources office. (Pl.'s Br. at 31-40.) Plaintiff also claims: (1) she was informed by Grant that she was not needed to work in any other building on Defendant's campus; (2) Woods refused to permit her to transfer shifts and insisted that she remain working on the same shift as Bangura; (3) she came face to face with Bangura on September 28, 2007, which made her uncomfortable, and (4) she felt compelled to resign as a result of the working conditions. She claims that Woods' inaction was so severe that it rose to the level of a constructive discharge.
1. Legal standard
Claims of retaliation, based on indirect evidence, in employment are governed by the familiar McDonnell Douglas framework. Weston, 251 F.3d at 432. To establish a prima facie case of retaliation under Title VII, "an employee must prove that (1) she engaged in a protected employment activity, (2) her employer took an adverse employment action after or contemporaneous with the protected activity, and (3) a "causal link" exists between the adverse action and the protected activity." Andreoli v. Gates, 482 F.3d 641, 649 (3d Cir. 2007). "[A] plaintiff claiming retaliation . . . must show that a reasonable employee would have found the alleged retaliatory actions materially adverse in that they well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006).
a. Protected Employment Activity
Here, it is undisputed that Plaintiff engaged in a protected employment activity when she complained to Woods' management about Bangura's sexual harassment. Id. at 343 ("Opposition to discrimination can take the form of informal protests . . . including making complaints to management."). Therefore, the Court proceeds to examine whether Carattini has proffered sufficient evidence of the second two elements of retaliation to survive Defendant's motion for summary judgment.
b. Adverse Employment Action
Plaintiff fails to point to sufficient evidence that Woods took an adverse employment action after, or contemporaneous with, the protected activity. She first claims that she was transferred from Brown Hall (the building she normally worked in), but she conceded that the transfer was made at her request. (Def.'s SOF at ¶ 54-55; Pl.'s SOF at ¶ 54-55.) Carattini also claimed that it was retaliatory to move her from building to building while the investigation was ongoing so that she and Bangura would not work together. However, she conceded that she requested at least one of these transfers, and the evidence reveals Woods' management was attempting to implement a workable solution and find a regular location for Carattini to work in a very short time frame. Moreover, the Court emphasizes here that Plaintiff only worked one full day between the time she reported the harassment to Grant and when she filed the charge of retaliation with the EEOC and resigned.*fn10 (Def.'s Mot. at 22 n.6.)
Finally, Plaintiff claims that Woods retaliated against her because it did not offer her the shift she desired until four days after she complained about the harassment. However, Carattini admits that on the sixth day after she reported the Bangura incident, and only on her second day back to work, Woods offered her the seven to three shift that she had previously requested. Yet, Plaintiff turned the offer down and resigned instead. Finally, Plaintiff did not lose any pay during this time period or suffer some other pecuniary loss. Thus, Woods acted promptly under the circumstances and its actions were not retaliatory. See Amati, 2007 WL 3256850, at *23 (finding that the refusal to offer plaintiff the daylight shift was not retaliatory).
The Court agrees with the Defendant that these incidents are not materially adverse employment actions. The incidents comprised of were minor and occurred against the backdrop of Woods seeking to separate Plaintiff from the alleged harasser. Under these circumstances, the Court concludes that a reasonable employee would not be dissuaded from filing a complaint.
Accordingly, Plaintiff has failed to establish a prima facie case of retaliation. Assuming that Plaintiff did, Woods has offered legitimate, non-discriminatory reasons for its actions, and Plaintiff has not met her burden of pointing to specific evidence in the record from which a reasonable jury could find pretext.
3. Constructive Discharge
To establish a constructive discharge claim an employee must demonstrate that the employer knowingly permitted conditions of discrimination in the workplace "so intolerable that a reasonable employee would be forced to resign." Levendos v. Stern Entertainment, Inc., 860 F.2d 1227, 1232 (3d Cir. 1988) (citation omitted). An employee's subjective perceptions of unfairness or harshness do not govern a claim of constructive discharge. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir. 1992). Instead, the focus is on the reasonable person, Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1162 (3d Cir. 1993), and courts employ an "objective test to determine whether an employee can recover on a claim of constructive discharge." Duffy v. Paper Magic Group, 265 F.3d 163, 167 (3d Cir. 2001).
Courts have considered a number of factors as indicative of constructive discharge: (1) a threat of discharge; (2) suggestions or encouragement of resignation; (3) demotion or reduction in pay or benefits; (4) involuntary transfer to a less desirable position; (5) alteration of job responsibilities; and (6) unsatisfactory job evaluations. Clowes, 991 F.2d at 1161.
Plaintiff cannot point to any evidence in the record that she was constructively discharged. Assuming arguendo the alleged harassment was severe or pervasive, Carattini's complaint of sexual harassment was promptly investigated and Woods' management was working to remedy the situation almost immediately after learning of Bangura's actions. Carattini was transferred, but only temporarily, and in an attempt to alleviate the situation and satisfy Plaintiff's request.
Although Carattini later protested the transfers, there is no sign that she sought assistance from someone above Grant and other Human Resources Department workers. See, e.g., Goss v. Exxon Office Systems Co., 747 F.2d 885, 888 (3d Cir. 1984) (constructive discharge found where supervisor repeatedly verbally abused plaintiff, questioned her abilities and stated that he doubted she would be able to manage motherhood and a career. Plaintiff sought redress with higher levels of management pursuant to the company's "open door" policy, but to no avail. After several meetings regarding her concerns with her supervisor, plaintiff was informed that she was being removed from her territory. She was told that her options were to accept another far less attractive, less lucrative territory or to quit.).
Plaintiff was not: (1) threatened with discharge; (2) encouraged to resign; (3) demoted or received a reduction in pay; (4) involuntarily transferred to a less desirable position; (5) subject to altered job responsibilities; or (6) subject to unsatisfactory job evaluations. Clowes, 991 F.2d at 1161.
Under these circumstances, a reasonable jury could not conclude that the conditions faced by Carattini during the six day period in question were so intolerable that a reasonable employee facing the same conditions would leave the job. See Jainlett v. CVS Corp., No 06-4196, 2008 WL 2929155 (E.D. Pa. July 30, 2008) (Robreno, J.) (finding no constructive discharge where an employee's hours were temporarily reduced, plaintiff did not seek help from upper management, change in hours was not presented in a confrontational manner).
Therefore, Wood's motion for summary judgment will be granted as to Carattini's claim of constructive discharge.
For the reasons stated above, Woods' motion for summary judgment will be granted. An appropriate order will follow.