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Ian D. Donaldson and Megan Donaldson v. Norfolk Southern Railway

August 15, 2011


The opinion of the court was delivered by: Hon. John E. Jones III



Presently before the Court is Plaintiff Ian D. Donaldson and Megan Donaldson's Motion for Summary Judgment, (Doc. 26), and Defendant Norfolk Southern Railway Company and Norfolk Southern Corporation's cross Motion for Summary Judgment. (Doc. 32). For the reasons set forth below, Plaintiffs' motion shall be denied and Defendants' motion shall be granted.


Due to the familiarity of the parties and this Court with the record, we herein set forth a number of material facts supplemented as necessary by additional facts throughout our analysis and disposition of the pending motions.

Plaintiffs Ian Donaldson ("Ian") and his wife Megan Donaldson ("Megan") (collectively "Plaintiffs") were employed by Norfolk Southern Railway ("NSR") during the time of the alleged incidents. Norfolk Southern Corporation ("NSC"), a Virginia corporation, is a national transportation company engaged in the business of hauling freight by rail through its subsidiary NSR. (Doc. 1 ¶¶ 7, 8). Ian was hired by NSR to work as a conductor in the Enola Yard on February 8, 2007. (Doc. 1 ¶ 16). On February 11, 2008, Megan, who was engaged to Ian, was hired by NSR as a train dispatcher in the Harrisburg Office. (Id. ¶ 17).

In April of 2008, Ian and Megan allege they began experiencing harassment when sexually explicit graffiti was written about Megan in the Enola Yard, where Ian worked. (Id. ¶ 18). Plaintiffs allege that some of the graffiti described illicit sexual activity between Megan and her boss, the Assistant Division Superintendent. (Id.). Ian contends that he reported the sexually explicit and offensive graffiti to his supervisor on April 5, 2008, but that sexually explicit graffiti was again written about Megan at the Enola Yard. (Id. ¶ 19). Defendants claim that Jeff Moore ("Moore"), the Enola Yard Terminal Superintendent, immediately contacted higher management to inform them of the situation and issued a bulletin the same day reiterating NSR's policy concerning all types of harassment. (Doc. 33 ¶¶ 35-36). In addition to instructing Ian that he should report any further incidents of graffiti to management for investigation, NSR directed Gary Petrewicz ("Petrewicz"), local chairman for the UTU, to talk to UTU members and instruct them to stop writing graffiti, which he did. (Id. ¶¶ 33-34).

After graffiti appeared a second time, on May 12, 2008, Ian again reported the incident to management. (Doc. 1 ¶ 20). In response, Moore contacted higher management including Ben Fennell ("Fennell"), the Assistant General Manager for the Northern Region, and Don Craine ("Craine"), the Assistant Division Superintendent, as well as NSR's EEO Department who subsequently commenced a formal investigation. (Doc. 33 ¶ 41). NSR's internal investigation involved interviewing all west end crews who used the office close to the graffiti, and notifying Norfolk Southern Police about the incident. (Id. ¶ 42). Defendants claim that on May 19, 2008, less than one week after the second occurrence of graffiti was reported, NSR painted over the graffiti and was completing interviews of the west end crews. (Id. at 43). Handwritten samples were also taken from the twelve (12) individuals who were interviewed about the graffiti, and those samples were forwarded to Debra Seibert ("Seibert") in NSR's EEO Department on June 19, 2008, who then forwarded the samples to an independent handwriting expert, Cina Wong, ("Wong"), for analysis. (Id. ¶¶ 44-45).

Following the third instance of sexually explicit and offensive graffiti, and another report of the incident to management on July 11, 2008, Moore photographed the graffiti and forwarded the same to Seibert in NSR's EEO Department for inclusion in the already existing file sent to Wong. (Id. ¶ 47). On August 4, 2008, Moore issued another bulletin emphasizing NSR's EEO policy regarding harassment to all employees at the Enola Yard. (Id. ¶ 48). Furthermore, following Wong's analysis of the handwriting samples and photographs, a report was issued that resulted in five individuals being accused as the parties responsible for the graffiti. (Id. ¶ 49). The five co-workers identified by Wong included Shawn Cox, Jason St. Clair, Michael Whisinnand, Jack Hurley, and Ryan Maulfair. (Id. 33 ¶ 50). Subsequently, on October 3, 2008, these individuals were charged with "conduct unbecoming an employee; defacing company property and engaging in harassment. . . ." (Id. ¶ 51). A hearing on this matter was rescheduled numerous times and eventually took place on March 11, 2009. (Id. ¶¶ 51-55).

Prior to the hearing, Ian and Megan both filed individual Charges of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on February 9, 2009, who referred the matter to the Pennsylvania Human Relations Commission ("PHRC") for dual filing. (Doc.. ¶¶ 9, 10).*fn1 Subsequently, formal notice of Plaintiffs' EEOC complaints was provided to Defendants on March 3, 2009. (Doc. 27 ¶ 42). In early March, Ian reported another incident of graffiti to Moore, but noted that he was unsure how long it had been present. (Id.¶ ¶ 56-57). Before the end of the day on March 11, 2009, NSR photographed and painted over the graffiti. (Id. ¶ 58). NSR disciplined the five employees identified by Wong with a "30 days deferred" suspension, akin to a probationary period, meaning that if the employee were to receive disciplinary action within a given period of time, the employee would be suspended for 30 days. (Doc. 37 ¶ 46).

Ian contends that NSR's investigation into the matter was not conducted in a confidential manner and consequently, in the summer of 2008, he began experiencing retaliation by co-workers and supervisors at NSR. (Doc. 1 ¶ 22). He alleges that these individuals ostracized him, verbally and physically threatened him, and physically attacked him for reporting the harassment he experienced. (Id.). In addition, Ian claims he experienced retaliation when he was suspended twice without pay on the basis of groundless reports regarding his work conduct which were fabricated by co-workers in retaliation for his reporting of the sexually explicit graffiti. (Id. ¶ 23).

On April 9, 2010, the PHRC closed Megan's case administratively, and on May 12, 2010, the PHRC closed Ian's case administratively. (Doc. 1 ¶¶ 11, 12). Ian and Megan both received notice of their right to sue in federal court on July 1, 2010. (Id. ¶¶ 13, 14). Plaintiffs contend they satisfied all administrative prerequisites necessary to bring suit in federal court, and therefore they filed the instant complaint on July 27, 2010 alleging five counts of discrimination pursuant to Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act.*fn2 (Doc. 1). Defendants filed a Motion to Dismiss Counts IV and V of Plaintiffs' Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) on September 27, 2010. (Doc. 8). Thereafter, on January 1, 2011, we issued a Memorandum and Order denying Defendants' motion to dismiss. (Doc. 20).

On May 23, 2011, Plaintiffs filed a Motion for Summary Judgment, (Doc. 26), and a brief in support thereof. (Doc. 28). Defendants filed an opposition brief on June 16, 2011. (Doc. 38). NSR and NSC filed their own cross Motion for Summary Judgment, (Doc. 32), and brief in support thereof, (Doc. 35), on June 1, 2011. Plaintiffs filed a brief in opposition on June 22, 2011, (Doc. 40), and Defendants filed a reply brief in further support of their motion on July 8, 2011. (Doc. 42). Therefore, the motions have been fully briefed and are ripe for disposition.


Summary judgment is appropriate if the record establishes "that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248-49 (1986).

In opposing summary judgment, the non-moving party "may not rely merely on allegations of denials in its own pleadings; rather, its response must ... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).

Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment." Anderson, 477 U.S. at 247-48.


A. Count I, III, IV & V: Hostile Work Environment Claim

Plaintiffs' motion and Defendants' motion both move for summary judgment on Plaintiffs' hostile work environment claims pursuant to Title VII.*fn3

Plaintiffs note that the Third Circuit's decision in Andreoli v. Gates requires a plaintiff to establish that: "(1) the employee suffered intentional discrimination because of her sex, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the employee, (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position, and (5) the existence of respondeat superior liability." (Doc. 28 at 14 (citing Andreoli v. Gates, 482 F.3d at 643)).

Under the first element, Plaintiffs assert it is undisputed that they were the subjects of sexually explicit graffiti in their workplace that described illicit sexual conduct between Plaintiffs and between Plaintiffs and other third parties. (Id. at 15). They argue that the graffiti targeted Plaintiffs based on their respective female and male genders. (Id. at 16). Plaintiffs cite Andrews v. Philadelphia for the proposition that "the intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course." (Doc. 41 at 11 (citing 895 F.2d 1469, 1482 (3d Cir. 1990))). They contend that the graffiti at issue here was designed to harass, intimidate, and humiliate Ian and Megan based on their respective genders. (Id. at 12 (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 21-22 (1993) ("When the workplace is 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, Title VII is violated."))).

As to the second element, the pervasiveness and regularity of the discrimination, Plaintiffs contend that the sexually explicit and offensive graffiti began in April of 2008 and continued throughout Megan's employment with NSR. (Doc. 1 ¶ 39). Moreover, they claim that because this Court found such facts to sufficiently allege the pervasive and regular element at the motion to dismiss stage, that the same facts adequately support this element in granting Plaintiffs' summary judgment motion.

Concerning the third element, the detrimental affect of the discrimination on the employee, Plaintiffs claim it is undisputed that they had actual knowledge of the sexually explicit graffiti about them. (Doc. 28 at 17). Furthermore, they maintain it is undisputed that Plaintiffs' co-workers at NSC observed the sexually explicit graffiti as well. (Id.). Plaintiffs argue it is also undisputed that Megan experienced embarrassment, emotional feelings, and stress as a result of the sexually explicit graffiti and from interacting with her supervisors, among them Mr. Martinez, who were also aware of the graffiti. (Id. at 18). In addition, Plaintiffs claim it is undisputed that Ian experienced stress in his personal relationship with Megan as a result of the graffiti. (Id.).

Under the fourth element, whether the discrimination would detrimentally affect a reasonable person of the same gender, Plaintiffs argue it is undisputed that they were subjected to at least three (3) separate instances of sexually explicit graffiti between early 2008 and the summer of 2009. (Id. at 19). They also claim it is undisputed that the graffiti was severe based on its inherent content. (Id.).

Finally as to the fifth element, the existence of respondeat superior liability, Plaintiffs argue it is undisputed that the five (5) individuals responsible for authoring the sexually explicit graffiti were NSR*fn4 employees. They also claim that management-level employees had actual knowledge of the sexually explicit graffiti. (Id.). Plaintiffs assert that despite Ian reporting the graffiti to management employees and his union representative, the graffiti continued to appear. They also contend that NSC did not commence an informal EEO complaint concerning the graffiti until Ian reported additional instances of sexually explicit graffiti. Moreover, Plaintiffs maintain, the graffiti itself was not properly or timely removed and remained on the property for over six (6) months. (Doc. 28 at 20).

In response, Defendants contend that Ian and Megan fail to offer any evidence in support of their motion other than conclusory statements. (Doc. 38 at 7). Concerning the first element, discrimination because of Plaintiffs' gender, Defendants argue it is not the gender of the victim or source of the alleged harassment that is critical to a sexual harassment claim, but rather the victim must prove that "the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimination . . . because of . . . sex.'" (Doc. 35 at 14 (citing Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81 (1998))). Defendants highlight the Third Circuit's decision in Bibby v. Philadelphia Coca Cola Bottling Company which discussed the three ways a plaintiff could prove same-sex harassment: there are several situations in which same-sex harassment can be seen as discrimination because of sex. The first is where there is evidence that the harasser sexually desires the victim. . . . Same-sex harassment might also be found where there is no sexual attraction but where the harasser displays hostility to the presence of a particular sex in the workplace. . . . Further, although it is less clear, a plaintiff may be able to prove that the same-sex harassment was discrimination because of sex by presenting evidence that the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender. (Id. at 15 (citing 260 F.3d 257, 262 (3d Cir. 2001))).

Applying Bibby, Defendants maintain, Plaintiffs have provided no evidence to infer that the sexually explicit graffiti was written in order to sexually harass or discriminate against Ian for any of the three reasons outlined above. (Doc. 35 at

16). In particular, Defendants emphasize Ian's deposition in which he testified to his belief regarding the ...

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