The opinion of the court was delivered by: Stengel, J.
Plaintiff Tomoko Funayama alleges that defendants Nichia America Corporation and its President, Shigeo Kuboniwa, are liable for discrimination, retaliation, a hostile work environment, and constructive discharge. The parties have filed cross motions for summary judgment. Because defendants have established that there is no genuine factual dispute and that they are entitled to judgment as a matter of law, their motion is granted. Ms. Funayama's motion is denied.
CROSS MOTIONS FOR SUMMARY JUDGMENT
Ms. Funayama is a woman of Japanese descent and is over forty years old. Am. Compl. Doc. No. 5, ¶ 10. She was hired by defendant Nichia America in 1995, to work in its offices in Mountville, Pennsylvania, as a Business Coordinator/Accountant. Id. ¶ 8. She was promoted to Assistant Financial Manager in January 1998 and to Financial Manager in January 2004. Id. ¶ 9. She contends, among other things, that she was subject to pervasive harassment in the form of comments, physical touching, and other actions at the hands of Nichia's President, Mr. Kuboniwa. Ms. Funayama's remaining claims stem from Nichia's decision to close its office in Mountville and consolidate its operations in Detroit, Michigan. Specifically, Ms. Funayama claims that the company discriminated against her on the basis of her gender, age, and national origin when it initially decided not to include her in the transition to Detroit and then demoted her by offering her an undesirable position there.
On February 17, 2009, while represented by counsel, Ms. Funayama filed an amended complaint containing fifteen counts against the defendants. This Court granted the defendants' motion to dismiss Count I of Ms. Funayama's amended complaint asserting a cause of action under Section 1981 and denied the motion as to the remaining counts. The following counts remain: Count II alleging retaliation in violation of 42 U.S.C. § 1981; Counts III and IV alleging gender discrimination in violation of Title VII of the Civil Rights Act ("Title VII") and the Pennsylvania Human Relations Act ("PHRA"); Counts V and VI alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and PHRA; Counts VII and VIII alleging race and national origin discrimination in violation of Title VII and the PHRA; Counts IX - XII alleging retaliation in violation of Title VII, the PHRA, and the ADEA; Counts XIII and XIV alleging sexual harassment in violation of Title VII and the PHRA; and Count XV alleging a violation of the PHRA against Shigeo Kuboniwa.
After the discovery period began and approximately two weeks before the discovery period was set to end, Ms. Funayama's attorney filed a motion to withdraw as counsel on October 13, 2009. See Doc. No. 20. That motion ultimately was granted on March 3, 2010, after repeated attempts to schedule and hold a settlement conference before United States Magistrate Judge Henry S. Perkin prior to the final withdrawal of Ms. Funayama's attorney. Ms. Funayama represented to the Court that she was attempting to obtain new counsel.
On March 3, 2010, this Court issued an order that Ms. Funayama could continue to seek new counsel, and noting that the case would proceed while she represented herself pro se. This Court set dispositive motion deadlines for the parties, in recognition of the fact that discovery should have been substantially complete prior to the date upon which Ms. Funayama's former attorney filed a motion to withdraw. The defendants failed to file a motion for summary judgment by the set deadline, but Ms. Funayama filed a number of motions, including a motion to re-open her Section 1981 complaint, a motion to amend her complaint to add delivery of adult sexual material, a motion for a preliminary hearing on her adult sexual material allegation, a motion for a new Rule 16 conference, and a motion to re-open the discovery period. See Doc. Nos. 39, 40, 41, 43, 44. Ms. Funayama's motions were referred to Magistrate Judge Perkin, who issued a Report and Recommendation resolving the motions. See Doc. No. 57. After a de novo review of Ms. Funayama's motions, defendants' responses, Magistrate Judge Perkin's Report and Recommendation, and Ms. Funayama's objections to Judge Perkin's R&R, this Court adopted the R&R and, pursuant to Ms. Funayama's request, re-opened the discovery period in her case and re-set the deadline for the parties to file summary judgment motions pursuant to Federal Rule of Civil Procedure 56. See Doc. No. 59.
Ms. Funayama engaged in ample discovery, deposing numerous Nichia employees. Both parties filed motions for summary judgment, which are now before the Court. Ms. Funayama also has filed numerous motions for reconsideration of this Court's order denying her second motion to amend her complaint, which was filed after the re-opened discovery period ended. See Doc. Nos. 95, 98. Defendants have filed a motion to strike exhibits Ms. Funayama submitted with her motion for summary judgment but did not produce during discovery. See Doc. Nos. 92,94.
B. Hostile Work Environment Allegations
During her deposition, Ms. Funayama was questioned at length about the sexual harassment allegations set forth in her complaint, many of which took place between 1999 and 2003. Ms. Funayama affirmed that, other than the instances set forth in her amended complaint and explained during her deposition, she was not harassed by Mr. Kuboniwa at any other time. Funayama Dep. 217:1-4, Sep. 15, 2009. Therefore, because Ms. Funayama has confirmed that no other outstanding incidents remain, the facts supporting her harassment allegations, as divulged during discovery and viewed in the light most favorable to her, are as follows:
In 1999, Ms. Funayama visited Mr. Kuboniwa's house to look at furniture he was discarding to see if she could use any of it. Funayama Dep. 217:7-19. After she arrived, she stayed for dinner, and after dinner, they went to an inn for a drink. Id. at 218: 1-5. When Mr. Kuboniwa later took her home, he grabbed her breast, kissed her, and asked if he could come to her apartment.*fn1 See id. at 217-220. She said no and he left. Id. at 220:20-24. The following Monday at work, Ms. Funayama spoke with Mr. Kuboniwa and explained that she wanted to maintain a professional relationship. Id. at 221:17-25. He said okay. Id. at 222:1-2.
During a business trip in 2001, Mr. Kuboniwa suggested that, although two rooms had been reserved for he and Ms. Funayama, they share one room instead. Funayama Dep. 224:10-15. When Ms. Funayama responded that two rooms would be better, he agreed. Id. at 224:17-19. He did not proposition her for sex or say anything else at that time. Id. at 224:16-24.
In 2003, Mr. Kuboniwa gave Ms. Funayama a Japanese novel that, according to the complaint, she found sexually explicit and erotic. Am. Compl. ¶ 20. She and Mr. Kuboniwa often had friendly small talk following business-related conversations. Funayama Dep. at 227:19-228:1. That small talk sometimes led to talk about literature, and Mr. Kuboniwa gave Ms. Funayama literature on at least one other occasion. See id. at 225:24-226:15. Also in 2003, Ms. Funayama went to Mr. Kuboniwa's apartment to deliver medicine to him after he had an operation. Id. at 228:19-25; Am. Compl. ¶ 21. She considered this a personal favor. Funayama Dep. at 231:11-12. When she arrived, Mr. Kuboniwa was lying in his bed, but got out of bed to take the medicine. Id. at 230:5-13. When he did, Ms. Funayama realized that he was only wearing his underwear. Id. at 230:15-16. Ms. Funayama did not claim that Mr. Kuboniwa made any advances or inappropriate comments at this time.
A third allegedly harassing incident took place in 2003, when Ms. Funayama attended a dinner meeting with Mr. Kuboniwa, Tobura Tazaki, a Nichia executive visiting from Japan, and some other managers. Am. Compl. ¶ 23. They went to a Hooters restaurant, which Ms. Funayama found inappropriate. Id. She was told that she did not have to attend the meeting, but chose to attend anyway so that she could "network" with Mr. Tazaki. Id. She did not claim that any sexual comments were directed at her during the dinner at Hooters, but did claim that the men present made comments about the waitresses' bodies in Japanese.
Although her complaint alleges that beginning in 1999 Mr. Kuboniwa regularly asked if he could come to her apartment, Ms. Funayama testified during her deposition that he stopped making this request in 2003. Funayama Dep., 222:14-19. She explained that after Mr. Kuboniwa asked her to dinner at some point in 2003, she sought the help of Debbie Masinos, a human resources representative at Nichia. Id. at 203:19-204:4; 222:14-19. Ms. Masinos suggested that Ms. Funayama clearly decline the invitation and later heard from Ms. Funayama that this response had been accepted well by Mr. Kuboniwa. See id.; Nichia Exs. V and W (Masinos Memo. To Funayama re: Kuboniwa; Funayama Email Resp. To Masinos Memo.). Ms. Funayama explained that Mr. Kuboniwa "stopped asking me to do something alone with him right after I said no to that dinner invitation[.]" Funayama Dep. 222:16-18.*fn2
The next specific incident of harassment, as set forth in the complaint, took place in 2006, when Mr. Kuboniwa allegedly told Ms. Funayama that he found it hideous that she was becoming Americanized. Am. Compl. ¶ 15. Then, in November 2007, Ms. Funayama submitted an Employee Self-Assessment evaluation on which she stated that one of her accomplishments was improving the balance between her work and personal life. Id. ¶ 29. Another supervisor at Nichia, Tim Ujike, told her that this "was an inappropriate remark or accomplishment." Id. The same month, Mr. Kuboniwa "reprimanded" Ms. Funayama for bringing her daughter to Nichia's office Christmas party.*fn3 Funayama Dep. 177:25-178:2. Ms. Funayama found this hurtful and did not feel that Mr. Ujike responded with sufficient concern when she reported the incident to him. Id. at 178:4-10. She did not tell Mr. Ujike that she believed Mr. Kuboniwa's reprimand was motivated by her age or gender. Id. at 182:22-25. Finally, on May 8, 2008, while at work, Mr. Kuboniwa asked Ms. Funayama if she was cold. Am. Compl. ¶ 39. Ms. Funayama responded that she wasn't cold because she had gained ten pounds in the last year. Id. Mr. Kuboniwa said that Ms. Funayama was still nice and slim and then stated "that he would not feel a woman was sexy unless the woman's body was like hers." Id.
With respect to her allegation that Mr. Kuboniwa "groped [her]
breasts, or near her breasts, on a regular basis" from 2003 until the
end of her employment in July of 2008, Ms.Funayama was asked why
she did not approach a supervisor about this
issue, as she had when Mr. Kuboniwa asked her out to dinner. See
Funayama Dep. 204:5-20. She stated that, "I thought I could live with
it if Mr. Kuboniwa didn't ask me out." Id. at 204:19-20. She explained
that she would not have been able to live with the groping if it was
"more obvious" or if he had "grabbed [her] breast." Id. at
204:21-205:6. She affirmed that if he had grabbed her breast, she
would have reported it. Id. at 205:9-11. Instead, Ms. Funayama
explained that Mr. Kuboniwa would touch her starting at her shoulder
and move down her back to the area between her back and her breast.
Id. at 206:10-207:1. She believed Mr. Kuboniwa engaged in this type of
touching for some sort of sexual thrill, but she never told him to
stop. Id. at 208:15-21; 209:5-9.
In addition to the Japanese novel Mr. Kuboniwa gave her in 2003, Ms. Funayama claims he gave her more sexually explicit material in November of 2007. The magazine Mr. Kuboniwa gave Ms. Funayama on this occasion, "Shukanshincho," was described by her as a popular weekly Japanese magazine containing general content on political, economic, and society issues, novels, jokes, and "Hollywood type" tabloid materials. Funayama Dep. 28:20-29:10; 231:20-25; Funayama Resp., 5. Ms. Funayama claims the particular issue she received contained an "illustration of a naked woman bending over predominantly showing the vagina and a woman's mouth holding a penis[.]" Funayama Resp., 5. She provides a copy of the page of the magazine, which includes a rough illustration of a woman with exposed genitalia; the drawing is so inexact that there is no basis upon which a viewer could conclude that the woman is holding anything in her mouth, much less a penis. See Funayama Ex. 1D.
Ms. Funayama stated during her deposition testimony that the sexual harassment she allegedly experienced was not the reason she resigned from her position in July of 2008.
Q: If I asked you why did you resign from Nichia, you would tell me that you resigned because you believed you were being discriminated against?
Q: And because you believed that you were being sexually harassed, right?
A: That was not the reason for resignation. Sexual harassment was not the reason for resignation.
Q: I see. Just the discrimination on the basis that you were Japanese and a woman?
A: Yes. And there was no future in Nichia, as I understood, by looking at my new job description. Why would I liquidate things in Lancaster, even temporarily liquidate something to go to Detriot, something that I know that I'm not going to be happy and satisfied. That seems like a dumb move.
Funayama Dep. 188:19-189:9.
C. Disparate Treatment, Retaliation, and Constructive Discharge Allegations
The allegations with respect to Ms. Funayama's position following Nichia's decision to move its operations from Mountville to Detroit are as follows: on May 7, 2008, she was told a decision had been made to not relocate her to Detroit, and that she would be terminated when the transfer was complete. Am. Compl. ¶ 35. Her position would be filled by Brian Marshall, an Assistant Financial Manager who reported to Ms. Funayama. Id. Marshall is a Caucasian male in his twenties who had only three years of accounting experience at that time. Id. ¶ 37. By comparison, Ms. Funayama had thirteen years of experience at Nichia, was "regarded as one of its key employees," and had an "excellent" performance record. Id. ¶ 41. Mr. Kuboniwa said that he and another Nichia executive "did not want any Japanese in the Detroit Accounting Department." Id. ¶ 36. On May 7, 2008, Mr. Kuboniwa said that "if there were any help needed in the Detroit accounting department that [Nichia's parent corporation in Japan] would send a young male Japanese person from Japan to help out." Id. ¶ 40. On May 28, 2008, Ms. Funayama filed a complaint with the Pennsylvania Human Relations Commission alleging discrimination on the basis of gender, age, and national origin. On the same day, Ms. Funayama met with Mr. Kuboniwa and was told Mr. Ujike would be resigning on August 14, 2008. Id. ¶ 43. Instead of losing her job, Ms. Funayama would be kept on for the transition to Detroit, but was not told what her duties or responsibilities would be. Id. ¶¶ 43--44. On June 25, 2008, Ms. Funayama met with Mr. Kuboniwa, Mr. Ujike, and Mr. Marshall. She was told that Mr. Marshall would be promoted to Mr. Ujike's position, and understood that she would be reassigned from her position as financial manager to a non-managerial clerical position. Id. at ¶ 45. She viewed this to be a demotion. Id. On June 26, 2008, Mr. Ujike encouraged Ms. Funayama to look at a "career change" website and told her the Detroit managers "did not like her and . . . were troubled that she had been offered a position in Detroit." Id. ¶ 46. On June 27, 2008, Mr. Kuboniwa told her the company had been notified by the EEOC regarding her complaint and they "didn't know what to do with her." Id. ¶ 47. On July 1, 2008, Ms. Funayama filed a charge of retaliatory discrimination with the PHRC and the EEOC, and resigned from her employment on July 28, 2008. Id. ¶ 48.
The evidence created during discovery reveals a very different set of facts. Nichia's move to Detroit was necessitated by a decline in business at its Mountville plant. Funayama Dep. 163:22-164:8. In 2008, a directive came from Nichia's parent company in Japan to close the Mountville plant and move Nichia's administration to Detroit. Id. at 164:19-24. Ms. Funayama estimated that while over fifty workers were employed at Nichia's Mountville location in 2002, that number had dropped to approximately twenty by 2008. Id. at 144:21-24. Ms. Funayama later estimated that almost twenty jobs would be lost as a result of the consolidation. Id. at 167:17-21. Mr. Kuboniwa told her on May 7, 2008 that the company did not plan to transfer her to Detroit, and at that time, she did not know what was going to happen to the other employees in the accounting department, including Brian Marshall. Id. at 169:12-170:7. Ms. Funayama believed at that time that Mr. Ujike was to go back to Japan. Id. at 169:22-24. Mr. Kuboniwa explained that as of early May, 2008, he did not have concrete plans for the makeup of the accounting department in Detroit; however, he confirmed that he told Ms. Funayama her employment would be terminated and expected Mr. Ujike to return to Japan. Shigeo Kuboniwa Deposition Session 1, 98:23-99:12, Sep. 21, 2010.
One of the key allegations of Ms. Funayama's complaint is that her position was to be given to a younger, white male, Mr. Marshall, upon the company's transfer of offices to Detroit. Although Ms. Funayama alleged in her complaint that she was told in May of 2008 that her job would be transferred to Mr. Marshall, she explained during her deposition that she did not find out that Mr. Marshall was going to Detroit until June 25, 2008, when she attended the meeting about the Detroit transfer with Mr. Kuboniwa, Mr. Ujike, and Mr. Marshall. Funayama Dep. at 170:3-14. During the time the transition was being planned, Mr. Kuboniwa planned to transfer only three members from Nichia's Accounting Department in Mountville to Detroit. Kuboniwa Dep. Session 1, 99:17-100:12. Mr. Kuboniwa later clarified that he planned for Mr. Ujike to handle some of the transition work upon the company's move to Detroit because of Mr. Ujike's ability to speak Japanese, his stronger relationship with Nichia Japan, and his broader knowledge base. Id. at 99:21-100:9; 114: 23-115:1. Nichia also has presented evidence that, unlike Ms. Funayama, Mr. Ujike was a licensed accountant. See Nichia Ex. K.
However, later in May of 2008, Mr. Ujike resigned from his position with Nichia, making himself unavailable for transfer to Detroit. See Kuboniwa Dep. Session 1, 103:24-105:8. After Nichia learned of his resignation, Mr. Kuboniwa offered Ms. Funayama a position in Detroit working in the Accounting Department that would be set up there. See id. at 105:5-16; 106:23-107:4; Funayama Dep. 103:5-8. In Ms. Funayama's words, "that meant that I was now going to Detroit for some sort of accounting position, unknown, and moving arrangements that the company would support was unknown. Title was unknown. Compensation was unknown." Funayama Dep. at 103:8-12. Mr. Kuboniwa affirmed that when he offered Ms. Funayama the position in Detroit in place of Ujike, he did not know who else would remain in the Accounting Department, and did not know how the Department would be structured. Kuboniwa Dep. Session 1, 107:1-4.
Ms. Funayama was unsatisfied with not knowing the nature of the position she was offered in Detroit. Although she asked Mr. Kuboniwa for details in late May, after she was offered a position, none were given to her until the June 25, 2008 meeting. When questioned by Ms. Funayama about why it took him a month to come up with a schedule of duties, Mr. Kuboniwa explained that because he was planning well into Nichia's future, he needed time to consider company structure:
Q: Why did it take so long [to respond to my email asking about
"the details of the position, salary, relocation, details?"]
A: Still I was considering the whole organization in the future, so I need more time.
Q: But you were clear on the 25th.
A: About accounting assignment.
Q: Plaintiff requested to give her the details, but you remained silent.
A: As I told you, when I received this email, I'm considering. I understand your concern. I told you. But please wait, that I told you.
Kuboniwa Deposition Session 2, 92:6-16, Oct. 12, 2010. At the June 25, 2008 meeting, Mr. Kuboniwa presented an Excel spreadsheet, prepared by or with the help of Mr. Ujike, detailing the duties Ms. Funayama and Mr. Marshall, who had also been offered a position following the transfer, would have in Detroit. Kuboniwa Dep. Session 2, 92:16-20.
Ms. Funayama alleges that the spreadsheet reflected that she would be relegated to "essentially clerk type of job duties" in Detroit. Funayama Dep. at 103:16-20. The spreadsheet had three columns: one describing a particular duty, one for the person assigned to that duty at present, and the third for the person assigned to that duty "new after [Mr. Ujike's] departure." See Job Reassignment Chart, Nichia Ex. U. Because many of the duties held by Nichia employees moving to Detroit were to remain the same, the space in the row designated for the new position-holder is often blank. See id. By way of example, the first column in the first row describes the duty "Payroll," the second column in that row indicates that Nichia employee Tae Kim was assigned to payroll at the time, and the third column in that row is blank, indicating that Ms. Kim was to continue her payroll responsibilities after the move to Detroit. See id. The first time Mr. Ujike appears in the chart, he is assigned the duty of "Bank reconciliations (payroll)," and Ms. Funayama's name appears in the third column, indicating that she would take over that particular duty in the move to Detroit. Id. There are 59 duties set forth in the chart. Seven duties originally assigned to Mr. Ujike were to be transferred to Mr. Marshall.*fn4 One duty originally assigned to Mr. Ujike was transferred to Ms. Funayama ("bank reconciliation (payroll)"), and one duty originally assigned to Ms. Funayama was transferred to Mr. Marshall ("T/B Analysis"). Two other duties, "Contact with PWC-NY" and "Contact with HQ" were originally assigned to "Tim [Ujike]/Tomoko [Funayama]" and were to be transferred to "Tomoko [Funayama]/Brian [Marshall]." Id. Ten duties originally assigned to Ms. Funayama on the chart remained hers upon the transfer to Detroit.*fn5 See id. During her deposition, Ms. Funayama explained that she took particular note of the fact that a duty formerly hers, monthly analysis of the trial balance sheet, was transferred to Mr. Marshall, and noted that clerical jobs she used to supervise appeared to be among her "everyday projects" in Detroit. Funayama Dep. at 237:14-238:15.
Although Ms. Funayama alleged in her complaint that she viewed the position offered to her in Detroit as a demotion, she stated during her deposition that when Mr. Ujike resigned, she initially understood that she was being asked to stay on to do the accounting work-work she had done for Nichia in Mountville-in Detroit. Funayama Dep. 106:15-25. She later testified that she believed the job offered to her in Detroit involved "setting up a new accounting department and transitioning the customer related accounting. Specifically, collections of the accounts receivable and working with the salespeople in that respect, ...