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Lucille Olivieri v. County of Bucks

August 15, 2011

LUCILLE OLIVIERI, PLAINTIFF,
v.
COUNTY OF BUCKS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM

Plaintiff Lucille Olivieri ("Olivieri") brings this action for employment discrimination she suffered while working as a 9-1-1 dispatcher for Defendant County of Bucks ("the County"). She brings claims under 42 U.S.C. § 1983 and the Pennsylvania Human Rights Act ("PHRA") against the County and one of her former supervisors, Defendant David Neil, Jr. ("Neil"), for subjecting her to sexual discrimination. Olivieri also brings claims under § 1983 and Title VII against the County and a different supervisor, Defendant Audrey Kenny ("Kenny"), for retaliating against Olivieri for her complaints to administrative agencies about harassment. I exercise jurisdiction over this dispute pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.

Today I consider two motions for summary judgment: one by Olivieri on her retaliation claims and one by the County and Kenny for all claims. For the reasons that follow, I will deny Olivieri's motion and grant the County and Kenny summary judgment on all claims.

I.BACKGROUND*fn1

A. The County's Sexual Harassment Policies, Training, and Complaint Procedure

The County prohibits sexual harassment amongst its employees in its Non-Discrimination and Harassment Policy ("the Policy"). The Policy defines sexual harassment broadly:

Sexual harassment may include a range of subtle and not so subtle behaviors . . . .

[T]hese behaviors may include, but are not limited to: unwanted sexual advances or requests for sexual favors; sexual jokes and innuendo; verbal abuse of a sexual nature; commentary about an individual's body, sexual prowess or sexual deficiencies; leering, whistling or touching; insulting or obscene comments or gestures; display in the workplace of sexually suggestive objects or pictures; and other physical, verbal or visual conduct of a sexual nature.

Dolan Decl. Ex. 2, at 1. The County "encourages reporting of all perceived incidents of discrimination or harassment," declares that reports will be investigated, and conspicuously prohibits retaliation against any individual who reports harassment or participates in an investigation. Id. The Policy emphasizes that the "County encourages the prompt reporting of complaints or concerns so that rapid and constructive action can be taken before relationships become irreparably strained." Id. at 2.

Recognizing that an individual may not wish to confront an offender directly, the Policy describes both an informal procedure and formal procedure for employees to address concerns. Pursuant to the informal procedure, an employee may notify his or her supervisor, Human Resources Director Carmen Thome, or Assistant Human Resources Director Meredith Dolan, who can talk to the alleged offender on the individual's behalf if the individual so requests. The Policy recognizes that there may be instances in which an employee wishes to only discuss the matter with a designated representative without formally reporting a co-worker.

To make a formal complaint, employees are instructed to notify one of the same designated representatives, who will then initiate an investigation and corrective action. In practice, employees may approach any of their supervisors. The County's Emergency Communications Department ("the Department") chain-of-command from lowest to highest is: Dispatcher I, Dispatcher III, Squad Coordinator, Assistant Superintendent of Operations, Superintendent of Operations, Deputy Director, and Director.

The County conducts yearly training on the Policy with all employees and provides copies and revisions of the Policy to all employees. Olivieri confirmed receiving copies of the Policy and related training on April 1, 1999, April 10, 2001, October 21, 2004, and June 8, 2007. Neil confirmed the same on March 10, 1999, April 9, 2001, October 7, 2004, October 21, 2004, and June 6, 2007. The County provides additional training for supervisors, such as Neil, on all human resources policies and requires that they pass a written test. For example, in January 2008, Neil completed a management continuing education program specifically on the topic of sexual harassment.

B. Olivieri's Description of Her Experience in the Radio Room

Olivieri began working for the County in 1991 and transferred to the Department in 1994. The Department provides emergency communication services for many agencies, including those that provide fire, police, and ambulatory services. From 1994 until her 2010 termination, Olivieri was a Dispatcher I in the Department's radio room. As Dispatcher I, Olivieri answered 9-1-1 calls from the general public and transferred calls to the appropriate emergency service responders.

In 1994, while still in training for her new position, Olivieri met Neil. At that time, Neil was the day work supervisor in the radio room.*fn2 Olivieri recalls that when her trainer was away, Neil would approach and ask, "'Hey, kid, you think you're going to go on the radio today or what?'" Olivieri Dep. 15, Apr. 19, 2010. From the beginning, Olivieri found his demeanor to be "aggressive" and his voice to be "very gruff." Id. at 16-17, 22. From 1994 to 2006, Olivieri continued to work with Neil, all the while believing that he did not like her. One time, when Olivieri pointed out that Neil had mistakenly given a less senior employee overtime, he later passed by her and muttered "'fucking cunt, that fucking bitch, now she gets nothing. Fuck her, she'll get hers." Id. at 28-29. Another time, Olivieri had a conflict with a co-worker and Neil intervened to take the side of the other co-worker. She felt that he repeatedly did this, regardless of the gender of the other co-worker. Neil occasionally made comments to Olivieri about her body being attractive, which she ignored. Neil's apparent dislike of Olivieri did not lead to discipline or other vindictive behavior. Id. at 31:18-20, 130-31.

Neil's volatile behavior was not limited to Olivieri. Olivieri would often witness his interactions with co-workers in the radio room. Olivieri reports that he would "frequently berate" co-workers or threaten to hurt them to "send a message . . . that you don't want to be on his bad side." Id. at 47. Olivieri says of one instance: "I remember one time he had an issue, a scheduling issue with a woman named Karen Grabowsky and he said he wanted to punch her in the fucking mouth. If she was a man, he would have punched her right in the fucking mouth." Id. Another day, a different co-worker cried because she heard Neil refer to her as "a fat pig." Id. at 51, 75; Koszarek Dep. 35-36, Apr. 21, 2010. Olivieri also observed Neil looking down female employees' blouses to see their breasts.

Olivieri also saw Neil touch co-workers inappropriately. Frequently, Neil rubbed a female dispatcher's shoulders and sometimes also rubbed his groin area against her back. As he walked away, he would say disparaging remarks about her such as, "'That fat fucking cunt. I can't believe somebody would eat that,'" or "her pubic hair must be down to her knees." Olivieri Dep. 49-50. Olivieri did not tell Neil that she was offended by the comments or touching. Id. at 53. Olivieri testifies that Neil rubbed his groin against her several times and that she saw him do this to other women as well.

Neil's vulgarity was not just directed at women. In the radio room, he would loudly spew obscene remarks about male colleagues as well. Neil referred to his supervisor, Superintendent of Operations Dennis Forsyth, as "fat pig" or "fat mother fucker" "[j]ust about every day," though Olivieri suspects that Forsyth did not hear these remarks. Id. at 71. Neil commented that one of his subordinates "was a dirty filthy pig, he didn't wash his hair, had a boil on his neck." Id. at 72. Or about another co-worker, Neil would say he "smelled like shit," or mock his height with jokes such as "[h]e's short enough to blow Forsyth." Id. at 72, 75. Neil generally enjoyed insulting how people were dressed, their cleanliness, their height, and their weight.

Most of Neil's boorish commentary was made about co-workers "behind their back" to entertain others. Id. at 73. Olivieri admits that, many times, she laughed because "it was actually funny, albeit inappropriate." Id. at 73-74. She says that Neil's behavior created "a terrible subculture" in the radio room of insults, one which everyone fed into. Id. Olivieri describes the atmosphere of the radio room to be one in which people, including herself, regularly used profane words such as "fuck" and "cunt." Id. at 44. At times she laughed and participated because she thought it was funny, but there were times when she was offended. Id. at 74.

On April 12, 2004, Olivieri had a panic attack at work and left early. When Olivieri returned to work a couple days later, Anne Markowitz of Human Resources met with her. Markowitz was concerned about Olivieri and they discussed the stresses of being an emergency call dispatcher. Olivieri testifies that she mentioned that Neil was the source of her stress. Id. at 134. The meeting then ended, without Olivieri telling Markowitz that Neil had been sexually harassing employees. Id. at 134-35.

On August 4, 2005, a fellow Dispatcher I filed a complaint about Olivieri. The complaint asked management to address Olivieri's "continuous negativity and complaining, ongoing crude comments and rude behavior." Mot. of Defs. County of Bucks & Audrey Kenny for Summ. J. Ex. I, ECF No. 58 [hereinafter Defs.' Mot. Summ. J.]. Squad Coordinator Kathy Koszarek received the complaint and promptly conducted interviews with Olivieri and her co-workers. Koszarek asked, "Is anyone on the shift causing an intimidating or hostile work environment for you," "[i]s anyone on the shift interfering with your job performance," and "[h]ave you witnessed any harassment in the room, verbal or physical, that shows hostility or aversion towards any individual or group?" Id. at 2. Three of nineteen co-workers reported work-related problems with Olivieri; Olivieri was not disciplined. No one voiced problems about Neil in response to Koszarek's open-ended questions about the work environment. See id. at 3.

Olivieri testifies that Neil's hostility became increasingly sexual towards her in 2006 because she then had "something he wanted"-prescription pain medication. Olivieri Dep. 77, 124. When Neil initially approached her to ask whether she would give him pills for his hernia, she obliged. He then "flipped from being nasty and insulting . . . to making a lot of sexual advances and propositions and . . . began to badger [her] for the pills every time he saw" her. Id. at 78. For example, in 2006, he said to her, "'Lucy, Babe, those tits look great. Is anybody using them and is he a white guy?'" Id. at 79. Other times, he graphically speculated about her pubic hair, offered to give her oral sex, suggested that she do that for him, asked to see her nipples, said that he wanted to "titty fuck" her, and bragged about his Viagra use. Id. at 79-82, 186. Olivieri characterizes the abuse as occurring "[e]very day once he started taking and asking for pills." Id. at 84. Some comments were made to the whole room, others were whispered. Olivieri describes feeling embarrassed by Neil's behavior, which she tried to ignore. Olivieri did not report Neil's comments to human resources or to a supervisor. Id. at 92:1-14; 133-135.

On March 3, 2007, Olivieri requested to change from day to night shifts. She did not provide a written explanation for the request, but she mentioned to Koszarek that she wanted to avoid Neil. Defs.' Mot. Summ. J. Ex. C; Olivieri Dep. 56-57; Koszarek Dep. 36. She apparently did not tell her Squad Coordinator why she disliked Neil. Olivieri's request was quickly granted.

After the switch, Olivieri "had little to no contact" with Neil. Olivieri Dep. 86:18-19; see id. at 310. At her deposition, Olivieri often uses her 2007 move to a different shift as a cut-off point to remember when an incident was likely to have occurred. E.g., id. at 197 (testifying that Neil did not rub against her after she moved to the second shift); 186:10-11 (responding that Neil did not look down her blouse "after I went to second shift. He had little opportunity."). After her shift change, Olivieri only saw Neil briefly every ...


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