The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
This is a sexual harassment / sexual discrimination lawsuit filed on behalf of Plaintiff, Donna Bonant, against her employer, Defendant Monark Student Transportation ("Monark") and its president Mark Schmitt ("Schmitt"). Doc. no. 11. Presently before the Court is Defendants‟ Motion for Summary Judgment and Brief in Support which contends that Plaintiff failed to adduce evidence during discovery sufficient to support any of her claims against either Defendant. Doc. nos. 28 and 31.
Plaintiff has filed a Response (see doc. no. 37) and a Brief in Opposition (see doc. no. 42) contending that ample evidence exists to support her claims. For the reasons that follow, this Court will grant in part and deny in part Defendants‟ Motion for Summary Judgment.
Summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show 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)(2).
When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. Fed. R. Civ. P. 56(e)(2).
To demonstrate entitlement to summary judgment, defendant, as the moving party, is not required to refute the essential elements of the plaintiff‟s cause of action. Defendant needs only point out the absence or insufficiency of plaintiff‟s evidence offered in support of those essential elements. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Once that burden has been met, plaintiff must identify affirmative evidence of record that supports each essential element of his cause of action. If plaintiff fails to provide such evidence, then he is not entitled to a trial, and defendants are entitled to summary judgment as a matter of law. Id.
In summary, the inquiry under a Rule 56 motion is whether the evidence of record presents a genuine dispute over material facts so as to require submission of the matter to a jury for resolution of that factual dispute or whether the evidence is so one-sided that the movant must prevail as a matter of law. It is on this standard that the court has reviewed Defendants‟ motion and Plaintiff‟s response thereto.
A. Plaintiff's Sexual Harassment / Hostile Work Environment Claim -- Exhaustion of Administrative Remedies Defendants contend that Plaintiff failed to raise a hostile work environment claim when she was before the EEOC, and thus, she failed to exhaust her administrative remedies with respect to this claim.*fn1 Plaintiff counters this argument by claiming that she, on multiple occasions, informed the EEOC, orally and in writing, that she was the victim of a sexual assault and Defendant discriminated against her for reporting the assault. Doc. no. 42, pp. 5-6. Plaintiff also contends that she informed the EEOC that Defendant Schmitt, owner of Defendant Monark, witnessed the assault. Id., p. 6. Thus, Plaintiff contends the EEOC was aware of her sexual harassment/hostile work environment claim, as were Defendants, and therefore she exhausted her administrative remedies and may proceed with this claim. Id.
The filing of a charge with the EEOC and receipt of a notice of the right to sue are prerequisites to a civil action under Title VII. Hicks v. Abt Assocs., 572 F.2d 960, 963 (3d Cir. 1978). Before filing a lawsuit, a plaintiff must exhaust her administrative remedies by filing a timely discrimination charge with the EEOC. Id. §§ 2000e-5. Once a charge is filed, the EEOC investigates the charge, and the plaintiff must wait until the EEOC issues a right-to-sue letter before she can initiate a private action. Carter v. Potter, 258 Fed. Appx. 475, 477 (3d Cir. 2007) citing, Burgh v. Borough Council, 251 F.3d 465, 470 (3d Cir. 2001). The ensuing suit is limited to claims that are within the scope of the initial administrative charge. Williams v. East Orange Community Charter School, 396 Fed. Appx. 895, 897 (3d Cir. 2010) citing, Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). "The purpose of requiring exhaustion is to afford the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, avoiding unnecessary action in court." Id.
After the charge is filed with the EEOC "the scope of the resulting private civil action in the district court is defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination . . . ." Hicks, 572 F.2d at 966 (internal quotations and citations omitted). In Hicks, the United States Court of Appeals for the Third Circuit held that the district court was not barred from hearing a sex discrimination claim that had not been included in the original administrative complaint because it was unclear whether the EEOC had improperly refused to amend the complaint. Id. at 964.
Following Hicks, the Court of Appeals refined its position with respect to the scope of claims that can reasonably be expected to grow out of a discrimination charge. See e.g., Anjelino v. New York Times Co., 200 F.3d 73, 92-3 (3d Cir. 1999) (reversing district court‟s dismissal of hostile work environment claims finding that wording of EEOC complaint -- "abusive atmosphere" -- was sufficient to maintain such claims); Spindler v. Southeastern Pennsylvania Transp. Authority, 47 Fed. Appx. 92, 94-95 (3d Cir. 2002) (affirming district court‟s dismissal of plaintiff‟s charge of racial discrimination which did not fall fairly within scope of his original complaint alleging disability discrimination); and Barzanty v. Verizon PA, Inc., 361 Fed. Appx. 411, 414 (3d Cir. 2010) (affirming district court‟s dismissal of plaintiff‟s hostile work environment claim where nothing plaintiff wrote in her EEOC charge form could be interpreted as giving rise to such a claim).
Although the Hicks standard does not preclude a plaintiff from asserting a claim for failing to check a box on the EEOC form, it does prevent a plaintiff from greatly expanding an investigation by alleging new and different facts when contacted by the EEOC following her charge. Barzanty, 361 Fed. Appx. at 414, citing Hicks, 572 F.2d at 967. Because the EEOC is required to serve notice on the employer against whom the charges are made, this standard also allows an employer to be put on notice of the claims likely to be filed against it. See 42 U.S.C. §§ 2000e-5(b), (e)(1). Id. In sum, the Hicks standard and its progeny suggest that if the allegations in a plaintiff‟s Complaint fall "fairly within the scope of the ... EEOC complaint, or the investigation arising therefrom" then those claims may proceed. Atkinson v. LaFayette College, 460 F.3d 447, 453 (3d Cir. 2006), citing Antol 82 F.3d at 1295.
This Court must now determine whether to preclude Plaintiff‟s sexual harassment/hostile work environment claim because such a claim constitutes a "great expansion" from that which is set forth on her EEOC charge form; or, whether she adequately placed the EEOC (and thus her employer) on notice of such a claim thereby providing the EEOC with the opportunity to investigate that particular claim, and thus exhausting her administrative remedies. Based on the evidence of record, although the EEOC Charge Form does not specifically set forth details concerning Plaintiff‟s sexual harassment claim, the evidence of record supports this Court‟s finding that Plaintiff notified the EEOC of her sexual harassment claim/hostile work environment claim thereby inviting an investigation of the claim. There is also evidence that Defendants were placed on notice of the alleged hostile work environment by Plaintiff‟s claim that Defendant Schmitt was present during one (or more) of the harassing incidents. Accordingly, Plaintiff‟s sexual harassment/hostile work environment claim will proceed to trial. See, infra. at pp. 6-7.
As noted above, Plaintiff‟s EEOC charge clearly expresses Plaintiff‟s belief that she was discriminated against on the basis of her sex. See doc. no. 30, at p. 82. The EEOC charge form reads in pertinent part as follows:
During the course of my employment with [Defendant Monark], I had been denied promotions . . . I was denied full time hours and given older buses to drive. I was given less-favorable route assignments. . . . I believe I was discriminated against because of my sex . . . in that throughout my employment I was treated less favorably male employees. . . .Id.
This Court finds that the allegations set forth above differ from those described in Hicks and Anjelino. Here, there is no statement specifically referencing a hostile work environment. However, this Court finds that Plaintiff‟s circumstances and the evidence presented to this Court are not entirely akin to facts in Barzanty.
As Plaintiff notes in her Brief in Opposition to Defendants‟ Motion to Dismiss, she placed the EEOC on notice of her sexual harassment/hostile work environment claims when she submitted her Discharge Intake Questionnaire and subsequently sent a letter to the EEOC reiterating this claim. This Court acknowledges that in Barzanty, the Court of Appeals held that a plaintiff may not rely upon any allegations set forth in her EEOC Intake Questionnaire because that form is not shared with the employer. Barzanty, 361 Fed. Appx. at 415 ("A plaintiff cannot be allowed to transfer the allegations mentioned only in the questionnaire to the charge itself. Not only would this be circumventing the role of the [EEOC], but it would be prejudicial to the employer.").*fn2
Here, however, Plaintiff contends that she wrote to the EEOC and noted that she was assaulted by another bus driver in front of Defendant Schmitt, owner of Defendant Monark. Doc. no. 42, p. 6. In addition, Plaintiff alleges that Defendant Schmitt was present when other incidents occurred. See doc. no. 41, pp. 20, 27. Thus, Plaintiff has alleged that Defendant Schmitt personally observed incident(s) -- including one sexual assault -- and she argues that these personal observations suffice as notice of a hostile work environment. These facts distinguish the instant case from Barzanty.
In sum, this Court finds that whether an assault actually took place and whether it occurred in front of Defendant Schmitt appears to be a material question of fact for the jury. Should the jury believe Plaintiff and determine that a sexual assault occurred in front of Defendant ...