The opinion of the court was delivered by: Chief Judge Kane
Presently pending before the Court is the Report and Recommendation of Magistrate Judge Methvin (Doc. No. 48) addressing Defendant's motion for summary judgment (Doc. No. 28), as well as objections thereto filed by Plaintiff (Doc. No. 49). The Court will adopt the Report and Recommendation.*fn1
This case concerns a civil action in which Plaintiff has raised claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq.; and 42 U.S.C. § 1981. Plaintiff was employed by Defendant to assemble motorcycle parts. (Doc. No. 30 ¶ 3; Doc. No. 43 ¶ 3.) Between July 2007 and November 2007, Plaintiff made five complaints to Defendant regarding her co-worker Timothy Denlinger. Specifically, she complained that Denlinger made her feel uncomfortable because he stared at her for long periods of time, unnecessarily came into close proximity to her, used the water cooler closest to her, and removed a tool from her back pocket. Defendant asserts that all of Plaintiff's complaints were investigated, and that Denlinger was instructed to avoid Plaintiff, even though none of Plaintiff's complaints were substantiated. On November 5, 2007, Plaintiff's supervisor filed a written disciplinary "consultation" against Plaintiff, stating that "no fault or wrongdoing was found in the actions of . . . Denlinger," and that if she continued to cause disruption and waste time -- purportedly by making frivolous complaints -- the next disciplinary measure would be the issuance of a verbal warning. (Doc. No. 43-18.) Plaintiff contends that Denlinger continued to stare at her and come into close proximity to her, but that she made no further complaints because she feared that her employment would be terminated if she did so. Plaintiff filed this present action asserting that Defendant discriminated against her on the basis of her race and sex, that she was subjected to a sexually and/or racially hostile work environment, and that Defendant failed to afford her equal rights and benefits on the basis of her race.
The factual details and legal standards governing Defendant's motion for summary judgment are comprehensively set forth in Judge Methvin's report and need not be reproduced here. In her report, Judge Methvin recommends that Defendant's motion for summary judgment be granted because Plaintiff failed to establish a prima facie case of race or sex discrimination, a hostile work environment claim, a breach of contract claim under 42 U.S.C. § 1981, or a viable equal rights claim under § 1981. (Doc. No. 48 at 14, 22, 25-26.) The Court will address Judge Methvin's findings and recommendations as well as Plaintiff's objections in turn.
II. RACE AND SEX DISCRIMINATION UNDER TITLE VII AND THE PHRA
Plaintiff's first objection is that Judge Methvin incorrectly found that Plaintiff failed to establish a prima facie claim of discrimination under Title VII and the PHRA. (Doc. No. 49 ¶¶ 2, 4-5.) To make out a prima facie case under Title VII, a plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was qualified for the position she sought to retain; (3) she suffered an adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of intentional discrimination. Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). In support of the third element, Plaintiff must set forth evidence that the action "effect[ed] a material change in the terms or conditions of . . . employment." Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001).
Judge Methvin found that Plaintiff's claim failed as a matter of law because Plaintiff did not present evidence satisfying the third and fourth elements. (Doc. No. 48 at 13-14.) With respect to the third element, Judge Methvin correctly found that the written disciplinary "consultation" that Plaintiff received on November 5, 2007, was not an adverse employment action, as Plaintiff set forth no evidence demonstrating that the consultation resulted in a demotion or denial of a promotion or pay raise, change in her work schedule or hours, or reassignment to a different position or location in the workplace. See Weston, 251 F.3d at 431; see also Mieczkowski v. York City Sch. Dist., 414 F. App'x 441, 447 (3d Cir. 2011).
Plaintiff asserts that there is a genuine issue of material fact as to whether the consultation constitutes an adverse employment action as well as whether she suffered other adverse employment actions because: (1) a record of the consultation was permanently placed in her file "and threatened escalated discipline that included termination;" (2) she was given a negative work assignment; (3) she lost overtime opportunities; and (4) she was unable to perform her job duties because she suffered from emotional and physical ailments due to Defendant's discrimination against her and Denlinger's harassment. (Doc. No. 50 at 5.)
Plaintiff's contentions are without merit. First, the fact that a record of the consultation was permanently placed in her personnel file is not sufficient to establish that it was an adverse employment action. See Mieczkowski, 414 F. App'x at 447 (holding that letters of reprimand do not constitute adverse employment actions by virtue of being permanently placed in a personnel file). Further, although the consultation did state that Plaintiff would be subject to progressive discipline if she continued to waste time and cause disruption, it also specifically stated that the next disciplinary measure utilized would be the issuance of a verbal warning, not termination. (Doc. No. 43-18.) Accordingly, the Court finds that Plaintiff has not set forth evidence showing that the consultation materially changed the terms or conditions of her employment. See Weston, 251 F.3d at 431. Second, Plaintiff has not pointed to any evidence in the record indicating that she was given a "negative work assignment" or how the alleged assignment materially changed the terms or conditions of her employment. Third, the record evidence reflects that Defendant neither denied Plaintiff overtime nor placed Plaintiff in a position where she could not earn overtime. In fact, Plaintiff testified that she and her partner decided that she should no longer work overtime. (Doc. No. 29 at 90.) Finally, Plaintiff's contention that she suffered emotional and physical ailments cannot be deemed adverse employment actions in the absence of any evidence indicating that the terms or conditions of her employment were materially changed. See Weston, 251 F.3d at 431. Because Plaintiff has failed to present evidence demonstrating how Defendant's actions materially changed her employment status, the Court finds that Plaintiff's objection regarding the third element of a prima facie case of discrimination fails. Accordingly, Plaintiff is unable to establish a prima facie case of discrimination under Title VII or the PHRA, and the Court need not address Plaintiff's objection regarding the fourth element.
III. HOSTILE WORK ENVIRONMENT
Plaintiff next objects to Judge Methvin's recommendation that summary judgment be entered in Defendant's favor on her hostile work environment claim. (Doc. No. 50 at 8-11.) To establish a hostile work environment claim under Title VII or the PHRA, a plaintiff must demonstrate that: "(1) [she] suffered intentional discrimination because of [her] sex [or race]; (2) the discrimination was [severe and] pervasive;*fn2 (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex [or race] in that position; and (5) the existence of respondeat superior liability." Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (footnote omitted). A hostile work environment is one that 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." Harris, 510 U.S. at 21 (internal citations and quotation marks omitted). In determining the existence of a hostile work environment, the Court must examine the "totality of the circumstances." Andrews, 895 F.2d at 1485-86.
Judge Methvin found that Plaintiff's hostile work environment claim fails as a matter of law because she failed to satisfy any of the five elements necessary to establish a prima facie case. (Doc. No. 48 at 22.) Even if, arguendo, Plaintiff could satisfy some of the elements of a hostile work environment claim based on either race or sex disrimination, she has failed to present evidence that the conduct underlying her claim was sufficiently severe or pervasive to satisfy the second element of the Andrews test. To satisfy the second element, "the harassment must be so severe or pervasive that it alters the conditions of the victim's employment and creates an abusive environment." Weston, 251 F.3d at 426. A court should consider several factors in determining whether an environment is hostile or abusive, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; [and] whether it unreasonably interferes with an employee's work performance." Id. (quoting Harris, 510 U.S. at 23). Further, the Court is mindful that Title VII should not be used to impose a "general civility code" on the workplace. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Judge Methvin concluded that Denlinger's conduct, although potentially "provoking" and "creepy," did not rise to the level of severity to be actionable. (Doc. No. 48 at 19.)
Plaintiff now contends that Denlinger threatened and humiliated her nearly every day for about one year and that she suffered a workplace injury due to his actions. (Doc. No. 50 at 9.) Plaintiff is unable to identify any evidence in the record to support her allegation that she suffered an injury due to Denlinger's actions. Further, the record evidence relating to Denlinger's conduct does not support Plaintiff's allegation that Defendant harassed her nearly every day over a one-year period. Rather, the record evidence relating to Denlinger's conduct -- which Plaintiff reported to Defendant via complaints -- amounts to four allegations over a period of approximately three months, from July 27, 2007 to November 1, 2007: (1) four instances of Denlinger staring at Plaintiff, including one in which he stared at her backside and another in which, after Plaintiff told him to stop staring, he told her to "stop being a dick;" (2) two instances in which Denlinger used the water cooler closest to Plaintiff; (3) one instance in which Denlinger removed a tool from Plaintiff's back pocket, thereby brushing against her buttocks; and (4) one instance in which Denlinger walked behind Plaintiff and made her feel uncomfortable. (Doc. No. 44 at 9-12; Doc. No. 48 at 4.) Plaintiff also alleges that "she did not report Denlinger's persistent acts to harass her that occurred after November 2007" because she feared her employment would be terminated if she did so. (Doc. No. 44 at 12.) These alleged "persistent acts" occurred between February 2008 and April 2008: (1) one instance in which ...