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Werwinski v. Interstate Brands Corp.

September 14, 2010

CHARLENE WERWINSKI, PLAINTIFF
v.
INTERSTATE BRANDS CORP., DEFENDANT



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Charlene Werwinski brought this employment discrimination action against Interstate Brands Corporation alleging one count of sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.*fn1 The defendant removed the case from the Court of Common Pleas of Philadelphia County, and upon termination of discovery, filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, I will grant the motion in its entirety.

I. BACKGROUND*fn2

The defendant is a wholesale baker and distributor of bread and cake snacks, including Wonder Bread and other products. The defendant hired Miss Werwinski in July 2000 as a production worker at its bakery in Philadelphia, and subsequently promoted her to Production Supervisor. Her responsibilities included overseeing the production of bakery products, quality control, the packing of products and completing required reports and paperwork.

In 2005, Robert Raimondo became Miss Werwinski's supervisor. The amended complaint alleges that Mr. Raimondo sexually harassed Miss Werwinski at work, including hugging her, kissing her neck, and touching her breasts on a weekly basis over a period from 2004 to 2007. While engaging in this conduct, Mr. Raimondo told her that he wanted to "f--k her" and "f--k her up the a-s." In response, Miss Werwinski told Mr. Raimondo to get away from her because "he's a married man." Miss Werwinski testified that these incidents typically lasted between "thirty seconds to a minute until she pushed [him] away." See Werwinski Dep. at 100.

Miss Werwinski also alleges that fellow-employee Robert McNamara overheard Mr. Raimondo make various inappropriate remarks to her. Mr. McNamara had been a Production Supervisor, the same position held by Miss Werwinski, but in July 2007, was promoted to interim Production Manager, a position he held until April 2009. In the latter position, he served as Mr. Raimondo's supervisor. Miss Werwinski testified that after Mr. McNamara was promoted, he was not present for any further inappropriate behavior by Mr. Raimondo. See Werwinski Dep. at 120. Mr. McNamara testified that he never witnessed Mr. Raimondo make any inappropriate or offensive remarks to Miss Werwinski, and never witnessed him touch her in any manner. See McNamara Dep. at 16.

During her years of employment with the defendant, Miss Werwinski never reported her allegations of harassment by Mr. Raimondo to anyone employed by the defendant. The first time Miss Werwinski made anyone at the defendant aware of the alleged harassment by Mr. Raimondo was in April 2008, when her counsel sent the defendant a copy of the filed EEOC Charge of Discrimination. Miss Werwinski claims that she chose not to report the alleged sexual harassment for almost four years because she was afraid of retaliation and losing her job. When asked why she was afraid to report the alleged harassment, Miss Werwinski responded, "[b]ecause when I was married, my husband worked in the same kind of situation. And he used to tell me all the time how they would just walk people out of there, management. And I was just afraid. I had it in my head." Miss Werwinski's former husband never worked for the defendant. She further responded that "when you work in a company and you're not in a union, there is no one there to protect you." Miss Werwinski also indicated that in 2002, two former co-workers complained about harassment, and she believed that "other employees really treated them bad."

Miss Werwinski testified that she did, however, tell people outside of work about the harassment she allegedly suffered. For example, in August 2007, Miss Werwinski told her family physician, "my boss was touching me and saying rude remarks, kissing me." See Werwinski Dep. at 17. During the period when the alleged harassment was happening, she allegedly told her friends Donna Scott and Marie Ferraro, and her elder daughter Nicole. Id. at 110-111. At some point in 2008, she told her friend and former co-worker Genevieve Cants about the harassment. Id. at 30-33. The record is void of affidavits from these persons, or of other evidence to support the allegation that others were aware of the alleged harassment.

During the second week of November 2007, Miss Werwinski worked a double shift and subsequently was an hour late for her shift on the following day. See Werwinski Dep. at 59-60. At her deposition, Miss Werwinski described a heated argument she had with Mr. McNamara about her lateness during which he told her he had decided to change her shift to the "first shift" which typically starts after noon. Id. This infuriated Miss Werwinski who viewed the change in shift as unfair. Id. at 61. Because the argument occurred at the end of her shift, Miss Werwinski left work and returned home. Id. at 63. She called out sick for her next shift and never returned to work.*fn3 At her deposition, Miss Werwinski admitted that Mr. McNamara based his decision to change her shift on a number of factors among them his belief that employees learn a great deal on the first shift. Although he told her this theory during the argument, she disagreed with him. Id. at 150. Mr. McNamara testified that he made the shift change because he wanted to cross train the supervisors. See McNamara Dep. at 24. He recalls that Miss Werwinski did not like the proposed change mainly because she did not want to work the evenings when her children would be home from school. Id. at 24-25. He also believes that Miss Werwinski never returned to work after that day. Id. at 27.

After receiving Miss Werwinski's EEOC Charge of Discrimination, the defendant contacted Veronica Blake-Greenaway, an attorney with over twenty years of employment law experience and an extensive background in conducting internal investigations in that area. The defendant asked Miss Blake-Greenaway to conduct an independent investigation of Miss Werwinski's allegations. In doing so, Miss Blake-Greenaway interviewed Miss Werwinski, Mr. Raimondo, Mr. McNamara, and Vincent Everman, the defendant's Human Resources Manager.

At his interview with Miss Blake-Greenaway, Mr. Raimondo described the relationship he had with Miss Werwinski as "convivial." See Werwinski Dep. at 142. He mentioned that during the summer of 2007, he tore the tendons in his ankle and someone left a "Walt Disney type 'Grumpy'" stuffed animal on his desk. Id. About a month later, Miss Werwinski acknowledged that it was she who had left the toy. When asked by Mr. Raimondo why she had done that, Miss Werwinski responded that it was because he was grumpy. Id. at 143-144.

Mr. Raimondo informed the investigator about another occasion when Miss Werwinski said to him, "You're miserable this morning, didn't you get laid?" Mr. Raimondo responded, "No, did you?" Id. at 145. At her deposition, Miss Werwinski acknowledged this exchange and characterized it as "basically a joke." Id. at 146. The record contains a memorandum from Fred Zolacha*fn4 to Mr. Raimondo criticizing him for his inappropriate handling of that incident. Mr. Zolacha informed Mr. Raimondo that he should have counseled or disciplined Miss Werwinski for making the initial comment, rather than to have responded in kind. He advised Mr. Raimondo that further similar conduct by him would be "met with strong disciplinary measures, up to and including termination of employment." See Def. Exh. P.

At the conclusion of her investigation, Miss Blake-Greenaway issued a report concluding, inter alia, that: (1) Miss Werwinski was well-versed in the defendant's policies prohibiting harassment in the workplace; (2) the fact that Miss Werwinski did not report the offensive conduct for four years was troublesome; (3) it was unreasonable for Miss Werwinski to fail to inform the defendant of her allegations; (4) the fact that Mr. Raimondo does not maintain that he never touched Miss Werwinski or other female employees is an indication of his credibility; (5) Miss Werwinski's allegations of retaliatory conduct by Mr. McNamara against her fail to establish any causal connection between the actions of which she complains and his observance of sexual harassment by Mr. Raimondo; (6) the fact that she did not complain of Mr. McNamara's retaliatory treatment until six months after she began her leave is evidence that her allegations against Mr. McNamara are not plausible; (7) Mr. McNamara denied having observed the conduct that Miss Werwinski attributed to Mr. Raimondo; (8) the defendant has regularly trained its employees in the area of sexual harassment, and it is clear that the defendant takes this matter seriously; and (9) when an employee who clearly understands her obligation to report instances of sexual harassment fails to do so for four years, her credibility is necessarily compromised.

After exhausting her administrative remedies as required, Miss Werwinski filed a cause of action in the Court of Common Pleas in Philadelphia County. Upon removal, she filed an amended complaint alleging one count of sexual harassment seeking ...


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