The opinion of the court was delivered by: Chief Judge Kane
Pending before the Court is Defendants Norfolk Southern Railway Company and Norfolk Southern Corporation's motion for reconsideration (Doc. No. 104) of this Court's October 22, 2009 memorandum and order, granting in part and denying in part Defendants' motion for summary judgment. (Doc. No. 99.) The motion for reconsideration has been has been fully briefed and is ripe for disposition. For the following reasons, the Court will grant the motion.
A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to present manifest injustice. Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is appropriate in instances where the court has "patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Rohrbach v. AT & T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996) (citation omitted).
It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995) (citation omitted).
The factual background of this case is laid out in this Court's Memorandum and Order of October 22, 2009, and need not be reproduced here. In the October 22, 2009 Order, the Court denied Defendants' motion for summary judgment as to Plaintiff's Title VII claims for discrimination in the course of her employment and as to Plaintiff's hostile work environment claim on the basis of her race. (Doc. No. 99 at 20.) The Court stayed the case for 30 days to allow the parties to brief the Court on whether Plaintiff exhausted her remedies before the PHRC or the EEOC as to Plaintiff's Title VII termination claim. (Id.) The Court dismissed all of Plaintiff's other remaining claims. (Id.) Specifically, the Court found that Plaintiff's claim under the Federal Employers Liability Act was time barred (id. at 11); that her hostile work environment claim on the basis of her sex was inadequate as a matter of law (id. at 18); and that her intentional and negligent infliction of emotional distress claims were also time barred (id. at 19). In addition, Plaintiff voluntarily waived her claims for wrongful discharge, breach of contract, breach of the duty of good faith and fair dealing, and a claim under the New Jersey Law Against Discrimination. (Id. at 8.)
In the motion presently before the Court, Defendants have asked for reconsideration of the portion of this Court's October 22, 2009 Memorandum and Order that denied Defendants summary judgment on the Title VII discrimination claim and hostile work environment claim based on race.
A. Title VII Hostile Work Environment Claim
In denying Defendants' motion for summary judgment as to Plaintiff's hostile work environment claim, the Court found that Plaintiff had exhausted her administrative remedies and that there were genuine issues of material fact over whether the alleged harassment was motivated by her race and whether Defendants were vicariously liable. (See Doc. No. 99 at 14-18.)
In their brief in support of reconsideration, Defendants argue that the Court erroneously applied the standard for imputing liability for supervisory harassment to incidents where the standard of imputing liability should have been for anonymous harassment. (Doc. No. 105 at 4-12.) The Court agrees. In the October 22, 2009 Order, the Court identified the analysis set by the Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), to deal with "negligent and intentional torts committed by an employee within the scope of his or her employment." Ellerth, 524 U.S. at 756. Under such a framework,
"The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment." Id. at 757. Yet "[i]n limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment." Id. at 758. The "requirement will always be met when a supervisor takes a tangible employment action [such as the denial of a promotion or a raise] against a subordinate." Id. at 762-63. When no tangible employment action is present, a defending employer may raise an affirmative defense comprised of two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Id. at 765. (Doc. No. 99 at 14-15 (citing Ellerth, 524 U.S. 742).) This analysis is the appropriate framework to analyze actions taken against Plaintiff by known supervisors, but it is not the standard that should have been applied where acts of vandalism were done by anonymous tortfeasors. Rather, as the Third Circuit Court of Appeals recently stated:
When the hostile work environment is created by a victim's non-supervisory co-workers, the employer is not automatically liable. Rather, employer liability for co-worker harassment exists only if the employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.
Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). Therefore, the Court committed a clear error by addressing all the actions against Plaintiff in the hostile work environment claim under the standard established for vicarious liability of supervisor conduct where the conduct that formed the basis of Plaintiff's claim was done by anonymous actors.
In acknowledging that the acts of harassment were done against Plaintiff by anonymous actors--rather than by her supervisors--the Court finds that Defendants have established that they cannot be held vicariously liable. "An employer's remedial action is adequate 'if it is reasonably calculated to prevent further harassment.'" Huston, 568 F.3d at 110 (quoting ...