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Dreshman v. Henry Clay Villa

August 11, 2010

ROY E. DRESHMAN, JR., PLAINTIFF,
v.
HENRY CLAY VILLA, ALTA CARE CORPORATION, HEALTH PRIME, INC., A/K/A HP/MARKLEYSBURG, INC., KATHY NOGROSKI, D.O.N. AND ANNETTE BUFFER, ADMINISTRATOR, DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

This employment discrimination case involves allegations by a former male nurse that his female co-workers and supervisors at a nursing home sexually harassed him because of his prior occupation as a stripper as well as his related allegations of sex and age discrimination and retaliation. In his Complaint, Plaintiff Roy Dreshman ("Plaintiff" or "Dreshman") alleges that his former employer, Defendant Henry Clay Villa ("HCV"), and its related entities Alta Care Corporation and Health Prime, Inc., discriminated against him based on his age and gender, retaliated against him for engaging in protected activities and subjected him to a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Pennsylvania Human Relations Act ("PHRA"), and the Age Discrimination in Employment Act ("ADEA"). (Docket No. 1). He further claims that his supervisors, Defendants Kathy Nogroski and Annette Buffer ("Individual Defendants") aided and abetted the alleged discrimination in violation of the PHRA. (Id.). Presently before the Court is Defendants' Motion for Summary Judgment. (Docket No. 32). Defendants argue that Plaintiff has failed to present sufficient evidence to support his hostile work environment, retaliation and aiding and abetting claims, while Plaintiff contends that his claims are properly supported by the evidence of record. Upon consideration of the parties' submissions and for the following reasons, Defendants' Motion [32] is granted, in part, and denied, in part.

II. FACTUAL BACKGROUND

The following facts were compiled from the parties' submissions pursuant to Local Rule 56 and the additional facts of record presented by Plaintiff in his opposition brief and addressed by Defendants in their reply brief.*fn1 Unless otherwise specified, the facts of record are uncontested. Viewed in the light most favorable to Plaintiff, they are as follows.

A. Plaintiff's Prior Work History and Educational Background

Plaintiff was born on October 13, 1953, and was 54 years old at the time of his termination from HCV in 2008. (Docket No. 31 at ¶ 3; Docket No. 38 at ¶ 1). Prior to working at HCV, from 1985 through 1997, Plaintiff was a dancer and emcee of several male reviews, including one known as "New York Hot Bodies" ("NYHB"). (Docket No. 31 at ¶ 26; Docket No. 38 at ¶ 10). Plaintiff owned, managed, promoted, and performed as a member of NYHB. (Id.). The dancers' performances were similar to the Chippendale dancers and, during shows, Plaintiff and the other dancers would wear only "g-strings" and allow female audience members to slip dollar bills into their "g-strings." (Docket No. 31 at ¶ 27; Docket No. 38 at ¶ 10). The dancers permitted women in the audience to take pictures of them while they were performing. (Docket No. 31 at ¶ 28; Docket No. 38 at ¶ 10). Plaintiff was also in charge of advertising and designed posters to promote NYHB that included pictures of him and the other dancers performing. (Id.). The business averaged about 56 shows per year. (Docket No. 31 at ¶ 29; Docket No. 38 at ¶ 10). Plaintiff testified that he stopped working at NYHB a few months prior to the start of his employment at HCV, but later admitted that there may have been some overlap between the two jobs and that he may have requested time off from his position at HCV in order to attend some shows. (Docket No. 31 at ¶ 30).*fn2

Plaintiff worked in the construction field during this time period as well. (Docket No. 31 at ¶ 7; Docket No. 38 at ¶ 1). At some point, he obtained his nursing degree from Community College. (Id.).

B. Plaintiff's Employment and Position at HCV

HCV is a nursing/personal care home located in Markleysburg, Pennsylvania.*fn3 (Docket No. 31 at ¶ 1; Docket No. 38 at ¶ 1). HCV is an at-will employer. (Docket No. 32-2 at 9). In 1997, Plaintiff learned of an open position at HCV from one of his construction co-workers and applied. (Docket No. 31 at ¶ 7; Docket No. 38 at ¶ 1). Plaintiff arranged for an interview with Kathy Nogroski, the director of nursing. (Docket No. 31 at ¶ 8; Docket No. 38 at ¶ 1). During this interview, Nogroski gave him a tour of the facility and asked if he could start the next day. (Id.). Plaintiff accepted, but finished out the week at his construction job and began work at HCV the following Monday, June 2, 1997. (Docket No. 31 at ¶¶ 4, 6, 8; Docket No. 38 at ¶ 1). His initial title was Registered Nurse-Supervisor ("RN"). (Docket No. 31at ¶¶ 4, 6; Docket No. 38 at ¶ 1).

As an RN Supervisor, Plaintiff was responsible for supervising the direct care staff, which included Licensed Practical Nurses ("LPNs") and Certified Nursing Assistants ("CNAs"). (Docket No. 31 at ¶ 10; Docket No. 38 at ¶ 1). Direct care employees were members of the bargaining unit employees of the facility, and accordingly, bid on shift assignments on the basis of seniority. (Id.). Plaintiff, and all other RNs, were not members of the union and seniority was of no significance with respect to their positions. (Id.). RNs were assigned to various shifts based on their availability, preferences, merit, and the needs of the facility. (Id.).

HCV employed both full-time and part-time nurses. (Docket No. 31 at ¶ 11; Docket No. 38 at ¶ 1). The only difference between full-time and part-time nurses was that those who were willing to commit to work at least thirty-two hours per week were considered full-time. (Id.). Part-time nurses could and often did work over thirty-two hours per week, but were not obligated to do so. (Id.). All nurses, regardless of status, were paid the same rate. (Id.). Plaintiff typically worked a double shift from 7:00 a.m.-3:00 p.m. and 3:00 p.m.-11:00 p.m., one or two days per week. (Docket No. 31 at ¶ 13; Docket No. 38 at ¶ 3).

Nogroski was the Plaintiff's immediate supervisor throughout his employment at HCV. (Docket No. 31 at ¶ 9; Docket No. 38 at ¶ 1). After Alta took over management of the facility, Nogroski reported to the facility director, Annette Buffer. (Id.). Both Nogroski and Buffer are named in Plaintiff's Complaint as individual defendants. (Docket No. 1).

C. Pictures/Posters of Plaintiff in the Workplace

Within a few months of the start of his employment at HCV, in 1997, some of the other employees recognized Plaintiff from attending one of his shows. (Docket No. 31 at ¶ 32; Docket No. 38 at ¶ 12). Plaintiff also told LPN Edna Baker that he used to be a stripper and managed other male strippers. (Docket No. 31 at ¶ 31; Docket No. 38 at ¶ 12). Some months later, the employees who had recognized Plaintiff from attending his shows were rumored to have brought photographs of him into the workplace that were taken at a show. (Docket No. 31 at ¶ 41; Docket No. 38 at ¶ 14). Baker told Plaintiff about the rumored photographs. (Id.). However, neither Plaintiff nor any of the other witnesses who testified saw any of the rumored photographs. (Docket No. 31 at ¶ 42; Docket No. 38 at ¶ 14). Plaintiff testified that he had not heard of anyone bringing in pictures of him from his stripping days into the workplace after 1997. (Docket No. 31 at ¶ 44; Docket No. 38 at ¶ 14).

At some point during his employment at HCV, a fellow employee, Diane Lucy, told Plaintiff that she had seen pictures of him and "pestered" him about getting a poster. (Docket No. 31 at ¶ 45; Docket No. 38 at ¶ 14). Plaintiff testified that he was "shocked" and "embarrassed" by her request, but acquiesced and gave her a promotional poster from one his shows that included his picture. (Id.). Lucy hung the picture on the back of her office door and another employee, Mary Fike, testified that she saw this poster. (Id.). After learning that Lucy had put the poster in her office, Plaintiff was upset and asked her about it. (Docket No. 31 at ¶ 47; Docket No. 38 at ¶ 14). Lucy responded that no one comes into her office much, so he should not worry about it, but she did not take down the poster. (Id.). Baker also requested a poster and Plaintiff again complied. (Docket No. 31 at ¶ 48; Docket No. 38 at ¶ 14). Baker took her poster home and put it in her scrapbook. (Id.).

D. Comments/Propositions by Co-Workers

It became well known throughout the workplace that Plaintiff was a former stripper, which prompted some comments and propositions to perform from his co-workers, his supervisor, Nogroski, and some residents of the facility. Employees would often inform new hires and residents of Plaintiff's previous occupation. (Docket No. 31 at ¶¶ 34, 37, 40; Docket No. 38 at ¶ 14). Plaintiff found this "a little annoying." (Docket No. 31 at ¶ 40; Docket No. 38 at ¶ 14). One time when he complained to Nogroski about this, she stated that he was "like a celebrity" and there was nothing she could do to stop the gossip. (Id.). Shortly after he started at HCV, Nogroski asked Plaintiff if he could perform at a friend's bachelorette party. (Docket No. 31 at ¶ 33; Docket No. 38 at ¶ 12). Plaintiff declined the invitation and told her that he no longer performed. (Id.). A few years after this interaction, Nogroski asked Plaintiff if he knew anyone who could perform at a friend's party. (Id.). When Plaintiff said no, Nogroski told him to call the doctor's office where the friend worked to tell her that he could not help. (Id.).

Co-worker Joann Guseman made comments to Plaintiff about giving lap or pole dances in front of their other co-workers. (Docket No. 31 at ¶¶ 38, 39; Docket No. 38 at ¶ 12). She also informed one of the residents that Plaintiff was a dancer. (Docket No. 31 at ¶¶ 34, 35; Docket No. 38 at ¶ 12). The resident referred to Plaintiff as "one of those hootchie kootchie dancers," and asked him for a lap dance. (Docket No. 31 at ¶ 35; Docket No. 38 at ¶ 12).

In 2001 or 2002, many of the employees were planning a Christmas party in a room where Plaintiff was present. (Docket No. 31 at ¶ 36; Docket No. 38 at ¶ 13). Someone commented that Plaintiff could strip at the party. (Id.). Plaintiff refused, stated "that's not going to happen," blushed and left the room. (Id.).

Plaintiff testified that he was also harassed by Fike, a subordinate employee, and that she made sexual advances toward him. (Docket No. 31 at ¶ 64; Docket No. 38 at ¶ 14). Fike denies ever making any sexual advances towards Plaintiff or having any sexual interest in him. (Id.). He testified that Fike asked him if she could come over to his house sometime. (Docket No. 31 at ¶ 55; Docket No. 38 at ¶ 14). Plaintiff invited her to bring along her husband, Melvin, who worked as a maintenance supervisor at HCV. (Docket No. 31 at ¶¶ 55, 57; Docket No. 38 at ¶ 14). Fike responded by asking, "[w]hy would I want to bring him?" (Docket No. 31 at ¶ 55; Docket No. 38 at ¶ 14). Fike denies that this conversation took place and stated that she only asked Plaintiff if her husband could go to Plaintiff's property to look for objects with his metal detector. (Docket No. 31 at ¶ 56; Docket No. 38 at ¶ 14). On another occasion, Fike asked Plaintiff if he would like to go out for a drink with her and other employees. (Docket No. 31 at ¶ 58; Docket No. 38 at ¶ 14). Plaintiff responded that he did not go out with people with whom he worked. (Id.). Fike also made allegedly sexist comments directed toward Plaintiff. He complained that she would address him arrogantly as "Mr. Big Man Supervisor" or variations thereof. (Docket No. 31 at ¶ 59; Docket No. 38 at ¶ 14).

Plaintiff and Fike both complained to management about each other. Fike knew that Plaintiff had complained to management about her, but had no reason to suppose that these complaints were related to sexual harassment. (Docket No. 31 at ¶ 65; Docket No. 38 at ¶ 14). Fike characterizes her complaints to management about Plaintiff as pertaining to patient care. (Id.).

Plaintiff also did not get along with Mary Ellen Kozak, another LPN who was "best friends" with Fike. (Docket No. 31 at ¶ 60; Docket No. 38 at ¶ 14). Like Fike, Kozak complained to management about Plaintiff not helping with patient care. (Docket No. 31 at ¶ 66; Docket No. 38 at ¶ 14). On two different occasions when Plaintiff corrected Kozak, she stated that "men should not be nurses" and walked away. (Docket No. 31 at ¶ 61; Docket No. 38 at ¶ 14). Kozak denies making these statements but Baker has overheard Kozak make comments of the same substance. (Docket No. 31 at ¶ 62; Docket No. 38 at ¶ 14).

When Plaintiff complained to Nogroski about Fike and Kozak being insubordinate to him, Nogroski responded, "[d]on't take their shit, write them up." (Docket No. 31 at ¶ 63; Docket No. 38 at ¶ 14). Nogroski declares that Plaintiff's complaints about Fike and Kozak were never sexual in nature. (Docket No. 32-1 at ¶ 7). Other employees of HCV, Steve Matthis and his mother Barbara Matthis, knew of the distaste of Fike and Kozak for Plaintiff. Steve Matthis perceived that Fike and Kozak did not like Plaintiff "for some odd reason," but never knew that reason. (Docket No. 31 at ¶ 70; Docket No. 38 at ¶ 14). Steve Matthis heard Fike say that she wanted to get Plaintiff fired because she did not like him. (Docket No. 31 at ¶ 68; Docket No. 38 at ¶ 14). Steve Matthis never saw or heard Fike make any sexual comments to Plaintiff.*fn4 (Docket No. 31 at ¶ 67; Docket No. 38 at ¶ 14).

Barbara Matthis stated that Fike and Kozak wanted to get Plaintiff fired because they felt he was a bad nurse and would not help them with their work. (Docket No. 31 at ¶ 71; Docket No. 38 at ¶ 14). Aside from a comment made by Fike that Plaintiff "needed to get laid" when he appeared at work in a particularly bad mood, Barbara Matthis never observed Fike or Kozak say or do anything to Plaintiff of a sexual nature. (Docket No. 31 at ¶¶ 73-74; Docket No. 38 at ¶ 14).

Cathy Hetrick, an LPN, would also make comments to Plaintiff. She worked at HCV for a few months in late 2007 and early 2008. Hetrick would call Plaintiff "Pretty Boy" or "Sweet Cheeks." (Docket No. 31 at ¶ 79; Docket No. 38 at ¶ 14). At one point, Hetrick said that her daughter would "have a lot of fun" with him. (Id.). Hetrick made comments to Plaintiff that he needed a "BJ," that he needed to get "laid," and that he was so grumpy he needed to "go home and get screwed." (Docket No. 31 at ¶ 81; Docket No. 38 at ¶ 14). Fike overheard the comment about a "blow job," but did not mention it to management at the time. (Docket No. 31 at ¶ 84; Docket No. 38 at ¶ 14). On another occasion, in Nogroski's presence, Hetrick stated that the only reason they kept Plaintiff around was "so that the ladies could look at his butt." (Docket No. 31 at ¶ 80; Docket No. 38 at ¶ 14). Fike also overheard Hetrick make similar comments of this nature. (Docket No. 31 at ¶ 84; Docket No. 38 at ¶ 14). Barbara Matthis heard Hetrick tell Plaintiff that he was "too good looking to be working at a place like this" and that she could show the Plaintiff a "good time." (Docket No. 31 at ¶ 82; Docket No. 38 at ¶ 14).

Many other comments were made behind Plaintiff's back. Frank Lally, another employee at HCV, once overheard one CNA say to another that they could "just see [the Plaintiff] in his underwear dancing on stage."*fn5 (Docket No. 31 at ¶ 75; Docket No. 38 at ¶ 14). On a separate occasion, Lally heard someone comment that Plaintiff had a "nice butt." (Docket No. 31 at ¶ 76; Docket No. 38 at ¶ 14). Neither Plaintiff nor a member of management were present when Lally heard these comments. (Docket No. 31 at ¶ 77; Docket No. 38 at ¶ 14). Lally also overheard Fike state that Plaintiff should not be working at HCV and that he should have stayed in his former profession. (Docket No. 31 at ¶ 78; Docket No. 38 at ¶ 14).

E. Inappropriate Touching

Plaintiff testified that he also had his buttocks touched three or four times by co-workers during his ten and a half years of employment. (Docket No. 31 at ¶ 49; Docket No. 38 at ¶ 14). Erica Cupp, an employee at HCV, touched his buttocks on three occasions; once in 2001, once in 2004 or 2005, and once in 2007 or early 2008. (Docket No. 31 at ¶ 50; Docket No. 38 at ¶ 14). On the last occasion, Cupp also commented to Nogroski that she (Cupp) had pictures of Plaintiff as a dancer and if he did not "walk in a straight line," she would bring them in to work. (Id.). In response, Plaintiff blushed and walked out of the nurses' station. (Id.). An employee with the last name Rugg touched the Plaintiff's buttocks in 2004. (Docket No. 31 at ¶ 51; Docket No. 38 at ¶ 14). Shortly after the incident, Rugg either quit or was terminated. (Id.). In 2000 or 2001, Rachel Rudge, an employee at HCV, "goosed" Plaintiff as he backed near her while she mopped the floor. (Docket No. 31 at ¶ 52; Docket No. 38 at ¶ 14). Plaintiff jumped, turned red, and left the area in response. (Id.). Approximately one month after the incident with Rudge, Plaintiff told Nogroski about the interaction. (Id.). Plaintiff could not recall any other incidents of touching that occurred during his time of employment at HCV. (Docket No. 31 at ¶ 53; Docket No. 38 at ¶ 14). Baker witnessed one of these events; though she could not recall when it occurred or who was involved. (Docket No. 31 at ¶ 54; Docket No. 38 at ¶ 14). Baker described the incident as involving nothing more than a playful slap by an employee that she observed as she was passing through the nurses' station. (Id.).

F. Plaintiff's Complaints to Management About the Alleged Harassment

Plaintiff testified that he complained to Nogroski a total of four times during his ten and one half years of employment: once in 1997, when a few CNAs told their co-workers that they had seen pictures of him dancing; once in 1999-2000, after someone made an embarrassing comment at the nurses' station; once between 2000-2007, concerning comments made by some of the nurses; and once concerning comments made by Hetrick, who worked at HCV from October 2007 to January 25, 2008. (Docket No. 31 at ¶¶ 85, 87; Docket No. 38 at ¶ 14). Plaintiff also complained to Annette Buffer about comments made by Hetrick. (Docket No. 31 at ¶ 87; Docket No. 38 at ¶ 14). When Nogroski asked Plaintiff about how Hetrick was doing, he said he did not like the ignorant comments he received from her and complained that if he had made these comments to a woman, he would be fired. (Docket No. 31 at ¶ 86; Docket No. 38 at ¶ 14).

G. Plaintiff's Request for a Full Time, Daylight Position

Customarily, Plaintiff worked two days per week, sixteen hours per day, always starting with the daylight shift. (Docket No. 31 at ¶ 94; Docket No. 38 at ¶ 14). In October 2007, Plaintiff made statements to Nogroski that he wanted full-time work, which he understood meant thirty-two hours per week. (Docket No. 31 at ¶ 89; Docket No. 38 at ¶ 14). In response, Nogroski approached Plaintiff about working full-time. (Docket No. 31 at ¶ 90; Docket No. 38 at ¶ 14). Plaintiff accepted the position.*fn6 (Id.). However, when the November 2007 schedule was released, Plaintiff was only scheduled for twenty-four hours one week. (Docket No. 31 at ¶ 91; Docket No. 38 at ¶ 14). Plaintiff approached Nogroski about the schedule, and she told him to address it with Kim Morrison, an LPN who did the scheduling. (Id.). Plaintiff was ultimately given full-time work for that week. (Id.). Plaintiff also claims that Gwen Rischel, a younger, female nurse was given preferred daylight shifts ahead of him. (Docket No. 31 at ¶ 94; Docket No. 38 at 14). But, Rischel was required to work all three shifts, as needed.*fn7 (Id.).

Plaintiff informed ten to fifteen of his co-workers that he was going to file EEOC charges when he allegedly did not get a full-time, daylight position. (Docket No. 31 at ¶ 95; Docket No. 38 at ¶ 17). The parties dispute whether management was informed of his intention to file EEOC charges. Defendants maintain that Plaintiff testified that management was not so informed. (Docket No. 31 at ¶ 96; Docket No. 38 at ¶ 17). However, they misconstrue Plaintiff's testimony. While he testified that he did not personally inform anyone in management of his intention to file charges, he also asserted that Nogroski was made aware by his co-workers. (Docket No. 36-1, Dreshman depo at 152-55, 224-27). Similarly, Fike declared in her affidavit that Nogroski was aware of Plaintiff's potential EEOC charge because Fike told Nogroski that Plaintiff had threatened to file an EEOC charge.*fn8 (Docket No. 36-2 at 18-20, ¶ 14). Plaintiff further testified that he believed that Nogroski would have informed Buffer, but admitted that he was speculating that this occurred. (Docket No. 36-1, Dreshman depo at 152-55. 224-27).

H. Defendants' Proffered Reasons for Plaintiff's Termination

On January 9, 2008, Plaintiff attended a mandatory meeting of the nursing staff. (Docket No. 31 at ¶ 14; Docket No. 38 at ¶ 3). At the meeting, management discussed a number of issues with staff members, including telling the nurses not to fax requests for medication changes to the physician's office because of concerns that the requests may not be received and acted upon in a ...


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