The opinion of the court was delivered by: Goldberg, J.
This case involves a Title VII claim premised upon an alleged hostile work environment. Currently before the Court are Defendants' motions for summary judgment. For reasons stated herein, Defendants' motions will be denied in part and granted in part.
Plaintiff Lucy Rorrer*fn1 and Defendant Richard Gilbert, were both employees of Defendant Cleveland Steel Container Corp., a steel pail manufacturing company. On August 1, 2006, Rorrer and Gilbert were working together in the spouts department along side a conveyor belt. Rorrer was running what is referred to as a double fittingmachine while Gilbert fed pieces of steel into the machine. Both employees stopped working while Gilbert used a utility knife to open a new box of pieces. After opening the box, Rorrer claims that Gilbert reached towards her with the utility knife, pressed it into her left breast and looked like he was "going to kill her." According to Rorrer, Gilbert had engaged in continuing sexual harassment prior to this incident. Defendant claims that this encounter was innocuous and that Gilbert was simply attempting to get Rorrer's attention to resume work.
Gilbert and Rorrer were separated after Rorrer reported the incident to Phyllis Plate, who Rorrer believed was her supervisor, and Richard Mayo, the Production Control Manager.Rorrer and Gilbert worked several shifts together before Gilbert was suspended for three days on August 7, 2006. Rorrer claims that each time she saw Gilbert she feared for her life. August 8, 2006 was the last day Rorrer went into work. While not physically injured, Rorrer claims to have been traumatized by the event to such an extent that she can no longer work.
On February 12, 2008, Rorrer and her husband, Louis Rorrer, filed suit against Cleveland Steel and Gilbert, seeking compensatory and punitive damages through a variety of claims. Extensive and often contentious discovery followed. Defendants Cleveland Steel and Gilbert filed motions for summary judgment on December 8, 2009.
Specifically, Defendant Cleveland Steel moves for summary judgment on Plaintiffs' claims of: (1) sexual discrimination under Title VII, 42 U.S.C. § 2000 et seq. (hostile work environment);*fn2 (2) ERISA, (3) intentional infliction of emotional distress; (4) negligent employment; and (5) loss of consortium. Defendant Gilbert moves for summary judgment on Plaintiffs' claims of: (1) sexual discrimination under the Pennsylvania Human Relations Act; (2) violation of the Pennsylvania Constitution Article I § 28 and in violation of the public policy of the Commonwealth of Pennsylvania; (3) intentional infliction of emotional distress; and (4) loss of consortium.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In order to defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A party moving for summary judgment has the initial burden of supporting its motion with evidence that would be admissible in a trial. Anderson, 477 U.S. at 248. If this requirement is satisfied, the burden shifts to the non-moving party to "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party may meet this burden either by submitting evidence that negates an essential element of the moving party's claims, or by demonstrating that the movant's factual evidence is insufficient to establish an essential element of its claims. Celotex, 477 U.S. at 331.
The nonmoving party cannot avert summary judgment with speculation or conclusory allegations, such as those found in the pleadings, but rather, must present evidence from which a jury could reasonably find in its favor. Ridgewood Bd. of Edu. v. NE for M.E., 172 F.3d 238, 252 (3d Cir. 1999). Finally, in reviewing a motion for summary judgment, the court "does not make credibility determinations and must view facts and inferences in the light most favorable to the party opposing the motion." Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).
III. LEGAL ANALYSIS - CLAIMS FILED AGAINST DEFENDANT CLEVELAND STEEL
A. Sexual Discrimination Under Title VII, 42 U.S.C. § 2000
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." Title VII, 42 U.S.C. § 2000e-2(a)(1). A plaintiff may establish a violation of Title VII by proving that sexual harassment created a "hostile work environment." Huston v. Proctor & Gamble, 568 F.3d 100 (3d Cir. 2009) (citing Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir.1999)). In order to establish the existence of a hostile work environment, plaintiff must prove the following:(1) plaintiff suffered intentional discrimination because of her sex; (2) the discrimination was severe or pervasive;*fn3 (3) the discrimination detrimentally affected plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in the same position; and (5) the existence of respondeat superior liability. Huston, 568 F.3d. at 104. We will review each element separately, along with the facts of record, viewing these facts in the light most favorable to Rorrer.
(1) Intentional Discrimination Because of Sex
"Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at 'discriminat[ion] . . . because of . . . sex.' " Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). "The critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. at 80. Sexual harassment need not be motivated by sexual desire or "include sexual overtones in every instance." Id. at 80; Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990). The court is required to undertake "a more fact intensive analysis . . . where the actions are not sexual by their very nature." Id. at 1482 n. 3.
Defendant Cleveland Steel argues that there is no evidence that Gilbert's touching of Rorrer's breast on August 1, 2006 was an act of intentional discrimination because of Rorrer's sex. According to Cleveland Steel, after Gilbert opened the box, using the utility knife, he was ready to resume working but could not get Rorrer's attention, presumably because of the noise. Cleveland Steel claims that as Gilbert reached towards Rorrer with the closed utility knife in his hand, Rorrer turned towards him and the knife made contact with her breast. Defendant argues that nothing in this transaction suggests that Gilbert acted as he did because of her gender. (Def. Cleveland Steel's Memo. pp. 5-6.)
Plaintiffs do not respond directly to this element, but generally point out that in order to determine whether a workplace environment is hostile, the court must look at the totality of the circumstances. (Pls.' Memo. p. 2, citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)).
We note that Rorrer's version of the events is much different than Cleveland Steel's in that she claims that Gilbert deliberately touched her breast with a utility knife. When this incident is viewed along with Rorrer's claim that Gilbert was constantly staring at her breasts and other evidence highlighted by Rorrer regarding Gilbert's history of "continuous harassment of his female co-workers," his conduct towards her could be viewed by a fact finder as gender motivated. See Seybert v. International Group, Inc., 2009 WL 722291 (E.D.Pa March 18, 2009) (plaintiff presented sufficient evidence to support the allegation that the harassment was because of gender where plaintiff alleged three incidents that contained overt sexual overtones - two where he stared at her breasts and one where he directed a sexual comment at her - along with incidents that were, on their face, non-discriminatory but still contributed to an overall sexually hostile environment).
Plaintiffs must also point to evidence that the harassment was severe, or pervasive and regular discrimination. To prove this element, plaintiff must show that her workplace was "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris, 510 U.S. at 21 (citations omitted). "The disjunctive phrasing means that 'severity' and 'pervasiveness' are alterative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the work place only if it is pervasive." Jenson v. Potter, 435 F.3d 444, 449 n. 3 (3d Cir. 2006) (citing Sullivan, Employment Discrimination).Therefore, a single incident of severe harassment in the workplace may contaminate the work place to such a high degree that it will be considered hostile. Id. Where harassment is not severe, incidents of harassment must occur either in concert or with regularity. Andrews, 895 F.2d at 1484.
When examining these standards, courts are to "look at all the circumstances" including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it interferes with an employee's work performance." Harris, 510 U.S. at 23. "Incidents involving employees other than the plaintiff are also relevant in establishing generally hostile work environment." Velez v. QVC, 227 F.Supp.2d 384, 410 (E.D. Pa. 2002). However, incidents reported by other female employees do not bear on plaintiff's individual claim of sexual harassment in the absence of evidence that plaintiff was aware of the incidents and that such incidents affected plaintiff's psychological well-being. Id.
Defendant Cleveland Steel asserts that Plaintiffs cannot establish that the August 1, 2006 incident was severe or that Rorrer suffered pervasive and regular discrimination. Specifically, they argue that one touch using a utility knife without a protruding blade is not "severe." Additionally, Cleveland Steel claims that Plaintiffs cannot establish pervasiveness, which entails regularity of harassment. Cleveland Steel points out that the only non-hearsay evidence of incidents involving other female employees is that of Barbara Yeakel, who alleges that Gilbert put a screwdriver to her breasts two years prior to Rorrer's August 1, 2006 incident. (Def. Cleveland Steel's Memo. p. 6; Def. Cleveland Steel's Reply Memo. pp. 5-6.)
According to Plaintiffs, a fact finder could certainly find that an assault with a knife was "severe." Plaintiffs refer to facts of record that establish that when Rorrer's face was turned away from Gilbert, she felt pressure against her left breast. When she turned around, she observed that Gilbert was pressing a utility knife into her breast. Plaintiffs also note that Dan Dulin, a Cleveland Steel Vice President and Gilbert's cousin, can establish that Gilbert admitted to him that when he did this, the blade to the utility knife was protruding. Rorrer has testified that Gilbert stood looking at her with a crazed look like he was going to kill her. In short, Plaintiffs argue this was a physical attack that threatened Plaintiff's life and was thus, "severe." (Pls.' Memo. pp. 3-6.)
Plaintiffs further point out that this incident was part of a pattern of harassment directed toward Rorrer and her female co-workers. In addition to the August 1, 2006 attack, Rorrer notes that Gilbert had on one occasion pointed at her breasts like he was going to grab them and on another occasion told her to bend over in a suggestive manner. She notes that "[h]e just looked down my shirt and kept staring at my breasts all the time. There's not one occasion; there's (sic) all the time he's around." (Pls.' Memo. p. 6.)
Plaintiffs also cite to an incident where Gilbert pushed an electric screwdriver, which was receiving power, into co-worker Yeakel's shirt between her breasts. Additionally, Yeakel testified that Gilbert stared at other female employees' breasts. Rorrer notes that she was aware that other employees had been harassed by Gilbert and that Yeakel had complained about Gilbert's behavior. (Pls.' Memo. pp. 6-7.)
Viewing all of this evidence in a light most favorable to Plaintiffs, and considering the frequency and severity of the conduct and the fact that if believed, Rorrer's version of the August 1, 2006 incident could certainly be viewed as physically threatening, we find that a fact finder could determine that the harassment was severe or pervasive. As noted by the Tenth Circuit in O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir. 1999), the severity and ...