The opinion of the court was delivered by: Judge Munley
Before the court are defendant's motions for summary judgment in these two related cases. Having been fully briefed and argued, the matters are ripe for consideration.
This case involves the alleged same-sex sexual harassment of the plaintiffs when they worked as "yard jockeys" driving trucks for Defendant Werner Enterprises.
Defendant Werner is a trucking company with a home office in Omaha, Nebraska. (Defendant's Statement of Material Facts in Cragle v. Werner (Doc. 23) (hereinafter Defendant's Statement) at ¶ 1). The events in question here took place at the Humboldt Industrial Park in Hazleton, Pennsylvania, where defendant maintains a facility. (Id.). The Hazleton facility is an off-site facility housed on the premises of a customer, Office Max. (Id. at ¶ 2). Office Max is the only customer served at that facility. (Id. at ¶ 3). Defendant maintains that the work schedule at this facility is based on Office Max's business needs. (Id. at ¶ 4).
Plaintiff Matthew Cragle began working for Defendant Werner on February 24, 2004. (Id. at ¶ 5). He worked as a "shag driver," also known as a "yard jockey." (Id.). Cragle started on the third shift. (Id. at ¶ 6). Cragle left employment with the company in October 2008. (Id. at ¶ 7). The parties dispute whether Cragle left voluntarily or was constructively discharged. (Id.; Plaintiff's Counterstatement of Material Facts in the Cragle Case (Doc. 34) (hereinafter "Plaintiff's Counterstatement") at ¶ 7). Plaintiff Russell Walper was hired by Werner as a "yard jockey" on March 8, 2004. (Defendant's Statement of Facts in the Werner Case (Doc. 23) (hereinafter "Defendant's Statement in Werner") at ¶ 8). He began working on the first shift at the Humboldt Industrial Park facility. (Id. at ¶ 9). Walper left his job in October 2008. (Id. at ¶ 10). Werner claims that Walper quit, while Walper insists he was constructively discharge because of a hostile working environment. (Walper's Answer to Defendant's Statement of Facts (Doc. 34) (hereinafter "Walper's Statement") at ¶ 10). The position held by both Cragle and Walper, "shag driver," defendant insists, was exempt from overtime pay rules. (Defendant's Statement at ¶ 11). Plaintiffs contend that the company routinely paid for overtime hours until a policy change occurred. (Plaintiff's Counterstatement at ¶11).
Brenten Lavelle became plaintiffs' supervisor in September or October of 2004. (Defendant's statement at ¶ 12). Lavelle continued to supervise plaintiff until June 30, 2006, when he quit working for defendant. (Id. at ¶ 13).
Lavelle was not a popular supervisor. All of the drivers in the department, including Cragle and Walper, had problems with Lavelle from his first day on the job. (Id. at ¶ 14). Lavelle called in all the drivers on a Saturday and informed them that he didn't like the way the building was being run. (Id.). Lavelle promised that "big changes were coming down the road." (Id.). The parties disagree about whether Lavelle's mistreatment was directed at all the yard jockeys or was aimed particularly at Cragle and Walper. (Id. at ¶ 15; Plaintiff's Counterstatement at ¶¶ 14-15). Defendant points to statements made by various other yard jockeys that indicate Lavelle treated everyone badly. (Defendant's Statement at ¶¶ 15-19). Cragle himself testified that Lavelle "harassed all of the yard jockeys by yelling at them because they weren't doing anything, making them pick up garbage and not allowing the yard jockeys to eat in the office." (Id. at ¶ 17). Bruce Knepper, a former yard jockey promoted to load planner, stated that Lavelle had a tendency to 'ride people' and make work brutal by ordering work when there was nothing to do. (Id. at ¶ 19). Knepper's complaints about Lavelle to the Omaha home office were not sexually related. (Id. at ¶ 20).
Cragle and Walper contend that Lavelle's behavior constituted sexual harassment. They point to several instances. Lavelle put his arm around Cragle in the office, squeezed his nipple and said, "boy, isn't he a really good looking boy?" (Plaintiff's Counterstatement at ¶ 15). Cragle had previously told Cragle not to do this, which implies that he had previously touched him. (Id.). Lavelle pinched Cragle's nipple on the veranda while others were smoking. (Id.). Twice between spring 2004 and August 2005, Lavelle approached plaintiff at lunch and asked him what he had to eat. (Id.). Lavelle then asked "you like that?" and grabbed plaintiff by the back of the head. (Id.). He said, "Here, why don't you try this. I'll give you something to eat." (Id.) Plaintiff saw Lavelle treat Walper in a similar way. (Id.). Lavelle also put his arms around Logan, another worker, and run his hand over his hair or the back of his neck. (Id.). After Cragle told Lavelle that his wife had injured her back, Lavelle said to him, "you should go home and tell that fucking bitch to get on her knees and suck your dick because she's not working, and this isn't no free ride." (Id.).
After Cragle filed a complaint to Werner about Lavelle's behavior, Cragle saw Lavelle rubbing Walper's shoulders, and Walper resisting. (Id.). When Walper asked Lavelle if he could stay and assist Cragle with work requiring overtime, Lavelle responded that "you's two are a couple of homo hillbillies up here, aren't you." (Id.). Cragle also saw Lavelle order Walper to get under his desk and "get the ball." (Id.). Cragle also felt that Lavelle made homosexual advances on him by inviting Cragle to his home to drink, play cards, and swim in his hot tub. (Id.). Lavelle also grabbed Walper's nipples a couple of times per week, even after Walper resisted and told him to stop. (Id.). Even after they resisted the conduct, Lavelle persisted, touching one or the other on a daily basis. (Id.). Lavelle also pushed Walper's head into his crotch. (Id.). While other employees may have been treated badly by Lavelle, they were not subjected to the same sort of sexual behavior. (Id. at ¶ 16). Walper believed that Lavelle's advances were sexual in nature. (Walper's Counterstatement of Material Facts (Doc. (hereinafter "Walper's Statement") at ¶ 21).
The parties also dispute whether Walper ever asserted that he felt Lavelle's conduct constituted sexual advances. Walper filed a complaint with the Pennsylvania Human Relations Commission; he crossed out the word "advances" in the complaint because he did not consider that word to be truthful. (Defendant's Statement at ¶ 21). Cragle contends that Walper's testimony was equivocal, and that "When asked if Lavelle liked him in a sexual way or whether Lavelle was just fond of him as a friend, Walper replied, 'No, not in a fond way.' Walper testified, 'He thought I was cute, He always said I was a good looking guy. He would put his arms around me.'" (Plaintiff's counterstatement at ¶ 21). Besides grabbing Walper's nipples and forcing his head into his crotch, plaintiff also saw Lavelle attempt to rub Walper's shoulders and order him to get under Lavelle's desk and "grab the ball." (Id.).
Werner had an anti-harassment policy, which both Cragle and Walper received information about. (Defendant's Statement at ¶¶ 27-28). In August 2005 Cragle made a verbal complaint about Lavelle to Nikki Arends (Green) in Werner's Omaha, Nebraska Human Resources Department. (Id. at ¶ 29). Cragle contends that he also complained on behalf of Walper and Logan. (Plaintiff's Counterstatement at ¶ 29). The parties dispute whether Cragle mentioned Walper's complaints about Lavelle. (Compare Defendant's Statement at ¶ 30; Plaintiff's Statement at ¶ 30). Walper insists that he instructed Cragle to complain on his behalf. (Walper's Statement at ¶¶ 29). Arends conducted an investigation after receiving this complaint, and spoke with at least two persons Cragle had mentioned in their conversation. (Defendant's Statement at ¶ 31). Walper never contacted the Human Relations Department, but Cragle insisted that he had done so on Walper's behalf. (Id. at ¶ 32; Plaintiff's Counterstatement at ¶ 32). Arends contacted Matthew Guillaume, Operations Supervisor at the Hazleton faciility to inform him about the complaint. (Defendant's Statement at ¶ 33). Defendant insists that Guillame understood the complaint to be one of gross misconduct, but plaintiff insists that he had specifically complained to Arends of sexual harassment. (Id. at ¶ 34; Plaintiff's Counterstatement at ¶ 34). Guillame had a conversation about complying with sexual harassment policies at Hazleton, making reference to the incidents involving Cragle, Walper and Logan. (Plaintiff's Counterstatement at ¶ 34).
The parties dispute how seriously Defendant Werner took the allegations against Lavelle. While defendant claims it acted to investigate and punish Lavelle, plaintiff contends that Lavelle received a discretionary pay raise within weeks of Werner's receiving the complaint. (Id. at ¶ 36). The company had discretion to terminate Lavelle after determining that the allegations were warranted, but did not do so. (Id.). Guillame also did nothing to discipline Lavelle after receiving Arends's report. (Id.). Werner did give Lavelle a written warning, informing him that he would be terminated if he repeated the behavior. (Defendant's Statement at ¶ 37). Lavelle received a written report describing inappropriate conduct on August 30, 2005. (Id. at ¶ 38).
Werner did not reveal to Lavelle who made the complaint, though Guillaume concluded that Lavelle had decided plaintiff had done so. (Id. at ¶ 40; Plaintiff's Counterstatement at ¶ 40). Werner directed Lavelle to apologize to the entire office staff, including the yard jockeys. (Defendant's Statement at ¶ 41). He did so. (Id.). Werner did not pay a bonus Lavelle was due to receive after the complaint, but did pay a bonus months later after Lavelle threatened to quit. (Id. at ¶ 42). The parties dispute the size of this bonus. (Id.; Plaintiff's Counterstatement at ¶ 42). Lavelle quit on June 30, 2006. (Defendant's Statement at ¶ 43).
Werner spoke with Cragle three times regarding his complaint. (Id. at ¶ 44). Plaintiff contends that he complained to Arends and Guillaume that Lavelle's conduct had continued, and that he found that conduct abusive and retaliatory. (Plaintiff's Counterstatment at ¶ 44). Guillaume, plaintiff claims, counseled that they had to expect Lavelle to be angry. (Id.). They should give him time to adjust to the situation. (Id.). Guillame followed up in October 2005, but all of the Hazleton staff, whether in the office or in the yard, were thinking of walking off the job because of Lavelle's behavior. (Id.).
The parties dispute whether Lavelle's conduct continued after Cragle complained. Defendant insists that it stopped. (Defendant's Statement at ¶ 45). Cragle alleges that Lavelle rubbed Walper's shoulders, which Walper resisted. (Plaintiff's Counterstatement at ¶ 45). Lavelle called Cragle and Walper a couple of "homo hillbillies" after Walper asked to stay and assist Cragle on overtime work. (Id.). Lavelle also put his arm around Walper and called him a "good looking guy" after the complaint. (Id.). Plaintiff also insists that Lavelle engaged in retaliatory conduct after he made his complaint, changing shifts of those who complained multiple times in one day. (Id.). Lavelle also began yelling at drivers when they received radio calls in the office. (Id.). He also barred drivers from eating in the office and made them eat next to a restroom. (Id.). Lavelle also attempted to physically intimidate Cragle by pushing him around. (Id.). Werner had reduced the number of yard jockeys from 8 to 6 before Cragle filed his complaint. (Id.). Cragle and Walper desired to work first shift. Plaintiff contends that they desired to work together because they feared that Lavelle would find reasons to fire them if they worked separately. (Id. at ¶ 57). (Id. at ¶ 45). They made an agreement that they would return to first shift when Carl Logan left Werner and went to Florida. (Id.). Meanwhile, Frank Sciafane, who had less seniority than either Werner or Cragle, would be placed on first shift. (Id.). Werner and Cragle did not get placed on first shift when Logan left. (Id.). Cragle had filed his complaint, and Lavelle told him that he would not be transferred to first shift. (Id.). The parties dispute whether the new shift assignments were made on the basis of seniority or at the discretion of Lavelle. (Defendant's Statement at ¶ 55; Plaintiff's Counterstatement at ¶ 55).
All drivers were required to work fifty hours per week. (Defendant's Statement at ¶ 65). Werner apparently provided overtime pay to workers who worked more than forty hours a week, but Office Max eventually cut back on its compensation to Werner and Werner stopped paying overtime hours to drivers. (Id. at ¶ 66). The parties dispute whether Werner could and did use its discretion to pay workers overtime after the Office Max cutbacks. (Id. at ¶¶ 66-67; Plaintiff's Counterstatement at ¶¶ 66-67). Plaintiffs contend that Lavelle at times denied him overtime to punish him for his complaint, and that workers--including plaintiffs--were given overtime after this pronouncement. (Id. at ¶ 66).
Walper and Cragle testified that they did not know if Lavelle was a homosexual. (Defendant's Statement at ¶ 49). They knew, however, that he was married while he was their supervisor. (Id. at ¶ 50). Cragle's only complaint against ...