The opinion of the court was delivered by: Anita B. Brody, J.
Plaintiff Caroline Eldridge ("Eldridge") has brought suit against Defendant Municipality of Norristown ("Municipality" or "Norristown") for disparate treatment and retaliation under 42 U.S.C. §§ 1981 and 1983; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 95 et seq.*fn1 Eldridge also brings a Fourteenth Amendment procedural due process claim under 42 U.S.C. §§ 1981 and 1983. Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Norristown has filed a motion for summary judgment. For the reasons set forth below, I will grant in part and deny in part Norristown's motion.
On February 14, 2007, Norristown hired Eldridge, an African-American female, as a Human Resources ("HR") manager. Pl.'s Resp. Ex. A. The Norristown Administrative Code governed Eldridge's position. Id.; Forrest Dep. 23:20-24:2. Eldridge worked as HR manager until February 18, 2009, when she was terminated by Norristown. During her first months on the job, Eldridge was supervised by Police Chief Russell Bono ("Chief Bono"). Bono Dep. 9:19-21, 12:5-8. Chief Bono had no issues or concerns about Eldridge's performance, received no complaints about Eldridge, and "got along well" with her over this time period. Id. at 9:22-10:14, 12:9-13, 13:15-20, 14:4-12. In May 2007, Norristown hired David Forrest, a Caucasian male, as the municipal administrator; thereafter, Eldridge reported to Forrest. Forrest Dep. 9:18-24, 19:7-15. Forrest and Eldridge's relationship progressively deteriorated as a result of several incidents in the workplace.
A. Reported Sexual Harassment and Forrest's January 2008 Memo
On December 10, 2007, Eldridge reported to Forrest that Charles Picard, a Caucasian male and Codes Department Supervisor for Norristown, sexually harassed Stephanie Alexander, a temporary staff employee. Pl.'s Resp. Ex. B; Eldridge Dep. 101:13-103:1. In a meeting on December 11, 2007, Picard and the Municipality's union steward denied the allegations and claimed that Alexander was the one being disrespectful and insubordinate to other employees.
Def.'s Mot. Summ. J. Ex. P-10. No action was taken against Picard based on his denial of the allegations. Forrest Dep. 136:17-137:5.
On January 5, 2008, Forrest wrote a memorandum to Eldridge's personnel file describing her tone in a recent meeting as "curt or rude" and possibly "insubordinate." Def.'s Mot. Summ. J. Ex. P-5. The memo then recounted two incidents-one around the time Forrest started with Norristown, the other "perhaps in the early fall of 2007"-in which Eldridge was "combative" and "indignant" toward Forrest. Id. He noted that he did not discipline Caroline for these events, but now thought that "[p]erhaps [he] should have done so." Id. In concluding, Forrest wrote that he "ha[d] been hoping that [Eldridge's] behavior would turn around," but that he was "[n]ow . . . not so sure." Id.
B. The Counseling Session and Subsequent Appeal
On April 17, 2008, Forrest held a counseling session with Eldridge to review certain actions that Forrest believed were inappropriate. According to a memo he wrote on April 18, 2008, Forrest discussed two incidents with Eldridge in this session-one involving her use of an air freshener prior to a meeting ("air freshener incident"), and the other concerning her grabbing the midsection of another employee in front of other employees ("hoagie roll incident"). Def.'s Mot. Summ. J. Ex. D-14. Additionally, Forrest again voiced his displeasure with several interactions he previously had with Eldridge, noting that she had "raised [her] voice with [him]" and been "borderline insubordinate." Id. On May 2, 2008, Eldridge sent a memo to Forrest appealing the April 17 counseling session. Eldridge stressed three points in the appeal: (1) that the primary reason for the counseling session was the tense working relationship between her and Forrest, (2) that Forrest too had at times displayed inappropriate behavior toward other employees, and (3) that Forrest's treatment of the "hoagie roll" and "air freshener" incidents was untruthful and inaccurate. See Def.'s Mot. Summ. J. Ex. P-15; Forrest Dep. 169:13-170:20.
1. The "Hoagie Roll Incident"
The "hoagie roll incident" occurred on February 21, 2008 when several female employees were engaged in a conversation about their weight in the office. Def.'s Mot. Summ. J. Ex. D-14; Eldridge Dep. 85:21-86:7. At some point during the conversation, Eldridge approached the group of women and observed everyone "talking and laughing" about one of the co-worker's having "eaten a whole box of Slim Fast bars." Eldridge Dep. 86:2-7. She joined in the conversation by acknowledging that "we all could lose a few pounds" and "talking about [her] hoagie roll." Id. at 86:8-10. At some point, in the "heat of laughter and talking with female co-workers," Eldridge "reached over and . . . pinched [Rawkins'] midsection."*fn3 Id. at 86:12-15. Eldridge did not learn that Rawkins took offense to this gesture until the counseling session on April 17. Id. at 86:16-19. In the session, Forrest informed her that Rawkins reported feeling embarrassed by Eldridge's action and that such unsolicited touching is "problematic" and "not consistent with municipal policies." Def.'s Mot. Summ. J. Ex. D-14. Soon thereafter, Eldridge called Rawkins into her office and apologized, noting that she "did not mean to offend her." Eldridge Dep. 87:7-88:7. Eldridge testified that neither she nor Rawkins displayed any acrimony during the meeting. Id. at 88:8-10.
2. The "Air Freshener Incident"
The "air freshener incident" occurred on April 9, 2008 in Norristown's conference room. Def.'s Mot. Summ. J. Ex. D-14. Just prior to a management meeting on that day, Forrest held a separate meeting in the conference room. Eldridge Dep. 89:1-10. Eldridge was not present for this meeting, and did not know who attended it. Id. 89:10-14. In between the meetings, Eldridge walked into the empty conference room and "smelled sewage." Id. 89:8-21, 90:22-91:1. She "immediately tried to open up the window but it was too heavy for [her]." Id. 89:22-24. She then went back to her office, right next to the conference room, and grabbed "a can of neutralizer." Id. 89:24-90:2. When she arrived back in the conference room, Forrest and several other employees were present, "but the meeting had not officially started." Id. 90:3-5. She "began to spray in the vicinity [of the smell] and sat down. [She] was very quiet [and] didn't say anything." Id. 90:5-6. Five of the employees in the room-each a Caucasian man-laughed at Eldridge's action, and two of those men, Chief Bono and Fire Chief Tom O'Donnell, "laughed so hysterically that they turned beet red." Id. 90:8-10, 93:1-94:7. Eldridge "didn't understand why they were laughing so hard." Id. 90:10-11. Forrest did not say anything, Eldridge did not say anything, and "the meeting went its course." Id. 90:11-13; 96:5-10.
After the meeting, Forrest came to Eldridge's office and explained that he, and the men who laughed at Eldridge's spraying, thought that she was making fun of Charlie Picard. Id. at 96:11-16; Def.'s Mot. Summ. J. Ex. D-14. Picard had attended the earlier meeting in the conference room, and he was an employee known around the office for having a body odor problem.
Def.'s Mot. Summ. J. Ex. P-15 at 3; Bono Dep. 17:14-17, 18:4-6. While Eldridge was aware that Picard possessed a distinct body odor, she was unaware that Picard had been in the conference room prior to her entering it and smelling "sewage." Eldridge Dep. 96:12-24; Def.'s Mot. Summ. J. Ex. P-15 at 3. Additionally, she was unaware that Picard had a medical condition, the medication for which caused him to have the odor. Eldridge Dep. 95:16-96:4, 97:1-5.
3. The McCausland Investigation
On June 11, 2008, Norristown hired outside counsel to investigate "the allegations of race and gender discrimination that had been filed" by Eldridge against Forrest. Def.'s Mot. Summ. J. Ex. P-17 (the "McCausland Investigation"); Forrest Dep. 170:5-9. In her appeal, Eldridge questioned why Forrest had approached her about the "air freshener incident," and not any of the employees who had laughed as a result of her actions. Def.'s Mot. Summ. J. Ex. P-15 at 3. During the McCausland Investigation, Eldridge claimed, inter alia, that Forrest's treatment of the "air freshener incident" discriminated against her based on her race and gender. Def.'s Mot. Summ. J. Ex. P-17 at 4-5. She has since acknowledged that Forrest spoke with Chief Bono about his reaction to her spraying the air freshener; however, she has testified that at least two of the men who laughed about the event-Fire Chief O'Donnell and Nick Vote-were not questioned about their reactions. Eldridge Dep. 97:14-98:8.
On June 24, 2008, while the McCausland Investigation was ongoing, Lieutenant James Hetrick, a Caucasian male, prepared a memorandum criticizing Eldridge's performance and behavior while conducting a recent set of job interviews. Pl.'s Resp. Ex. C. In September 2008, the McCausland Investigation ended and a report was issued. Def.'s Mot. Summ. J. Ex. P-17.
At some point during Eldridge's employment with Norristown, she received a complaint that one of Norristown's employees, Devon Vann, was possibly involved in criminal activity while on the job. Eldridge Dep. 48:7-24. Eldridge found this complaint to be a "concern" because Vann "works for the municipality." Id. 53:3-12. Eldridge then met with Vann and learned that he had a criminal history as a juvenile in Maryland. Id. 50:10-14. After she relayed this information to Forrest, he requested a copy of Vann's criminal record in Maryland. Id. 51:13-18, 53:16-54:1. Elridge made the request to Vann, who was unable to retrieve a copy of his record. Id. 54:5-17. In her deposition, Eldridge said that she "believe[s]" that at some point later, in an email, she "had made mention that demanding that he retrieve this copy, if he did not, we were going to relieve him from his employment [sic]." Id. 55:15-23. She "was concerned" that Norristown was "possibly, possibly violating [Vann's] civil rights" by conditioning his employment in such a manner.*fn4 Id. 55:24-56:3. Norristown ultimately dropped the entire matter after Vann hired an attorney. Id. 56:22-57:6.
C. The Discipline of Charlie Picard
As noted earlier, Charles Picard, a Caucasian male, was a Codes Department Supervisor for Norristown. A collective bargaining agreement governed Picard's employment. Forrest Dep. 84:9-17, 91:18-92:11. Norristown disciplined Picard as a result of his using racially-insensitive language on two separate occasions, and making a harassing phone call.
1. Picard's Use of Racially Insensitive Language
In a 2008 meeting with Forrest and several other employees, Picard described the "shoddy" work of others as "nigger rigging." Picard Dep. 35:17-36:18, 37:11-15; Forrest Dep. 69:1-19, 70:7-15. Forrest initially responded to Picard's comment in the meeting by saying he was "going to ignore that." Forrest Dep. 72:17-20. He then subsequently met with Picard to inform him that "if [he] says things like that, [he] was gonna get fired." Id. 72:23-73:2.
Then, in 2009, Picard made a phone call related to his work in which he referred to someone as a "nigger son of a bitch." Picard Dep. 49:19-50:5; Forrest Dep. 80:11-21.Picard did not report the incident to Forrest, but, unbeknownst to him, the conversation was on speaker phone. Picard 56:9-57:4. Upon learning of the matter from another employee, Forrest met with Picard and suspended him for five days without pay. Forrest Dep. 82:3-83:14.
When asked in his deposition why Picard was given a verbal warning and subsequent five-day suspension for these incidents, Forrest responded that the reason was "progressive discipline . . . [because] particularly in a bargaining unit situation, it is . . . prudent to go through the steps so that ...