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Lucy Rorrer v. Cleveland Steel Container Corp

January 18, 2012

LUCY RORRER
PLAINTIFF,
v.
CLEVELAND STEEL CONTAINER CORP., DEFENDANT.



The opinion of the court was delivered by: Goldberg, J.

MEMORANDUM OPINION

This case involves Title VII claims premised upon an alleged hostile work environment at Cleveland Steel Container Corp., a Quakertown, Pennsylvania company which manufactures steel pails. Before the Court is Plaintiff's motion for a new trial, which raises eighty-six claims of error that allegedly occurred during an eight-day trial. For the reasons set forth below, we find no grounds to disturb the jury's verdict and thus Plaintiff's motion will be denied.

I. INTRODUCTION

In the typical case, our approach in addressing post-verdict motions would be to carefully consider the claims presented in conjunction with the trial record, consider the responses, review the law and make a determination regarding those claims. This, however, is not a typical case.

From the outset of discovery, continuing through trial, and now at the post-verdict motion stage, the level of animosity between the lawyers has been beyond anything this Court has witnessed either as a practitioner or judge. This case necessitated unending intervention by the Court and constant resolution of disagreements between counsel on even the most basic matters, such as the exchange of exhibits. The majority of the issues raised by counsel did not involve principled legal or evidentiary disputes. Rather, the Court's primary role in this case was to act as a referee between two attorneys whose dislike for each other seemed at times to overshadow the interests of their clients.

The Court is now confronted with reviewing over eighty claims of error raised by Plaintiff (fifty-six actual numbered claims, many with multiple sub-parts). Addressing these claims has required an enormous amount of time and judicial resources and, frankly, has been disheartening. Regarding the inordinate number of claims raised by Plaintiff, the comments of the Honorable Ruggero John Aldisert aptly apply here:

With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant's brief that contains ten or twelve points, a presumption arises that there is not merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.

Ruggero J. Aldisert, The Appellate Bar: Professional Responsibility and Professional Competence - A View From the Jaundiced Eye of One Appellate Judge, 11 CAP. U. L. REV. 445, 458 (1982). Not surprisingly, a majority of the issues raised by Plaintiff's counsel have little to do with

substantive allegations of error, but are personal and disparaging attacks on Defense counsel and the Court. For instance, Plaintiff's counsel alleges that some of Defense counsel's trial strategy included tactics that were aimed to "terrify" Plaintiff, and induce "severe emotional distress." (Pl.'s Mot. ¶ 4.) Without any basis or citation to the record, Plaintiff's counsel also accuses Defense counsel of: threatening the Court with reversal if a verdict were allowed for Plaintiff(id. ¶ 28); "misbehaving in the courtroom, making comments about plaintiff's counsel under her breath, shaking her head and sighing throughout the trial" (id. ¶ 29); and, asking Plaintiff's counsel if she was going to "slither away" (id. ¶ 29). Without any support or basis, Plaintiff's counsel also alleges that Defense counsel engaged in "unethical conduct in using ex-parte conversations . . . and influencing witness employees not to talk to plaintiff's counsel." (Id. ¶ 33.) Unfortunately, these very serious allegations are only a small sampling of Plaintiff's counsel's claims.

Plaintiff's counsel's accusations against the Court are equally as scathing. Essentially, Plaintiff's counsel has alleged that the Court abandoned its most basic and important function-to provide a fair and impartial forum for the parties. (See id. ¶¶ 27, 33). Despite this inflammatory rhetoric, our view is that we bent over backwards to provide Plaintiff and her attorney with a fair and dignified forum to present their case. More importantly, we took great care to resolve all of the unending disagreements between counsel outside the presence of the jury, and the record squarely bears this out.

The simple truth is that if constant intervention was required by the Court, it was due in large part to Plaintiff's counsel's inability to follow even the most basic principles of acceptable advocacy, and this Court's Orders. Any impatience with Plaintiff's counsel displayed by the Court was more than warranted. Indeed, we are certain that Defense counsel may be equally as displeased with the Court for the continued latitude and courtesy we tried to extend to Plaintiff's counsel. If the Court was impatient with Plaintiff's counsel, she only need to examine a few examples of her unprofessional behavior to discern why. Some of these antics included: instigating a phone discussion with the Court's law clerk regarding her personal and professional difficulties, in which she cried when explaining her reasons for opposing a trial continuance; having her expert meet with Plaintiff for an extensive follow-up exam days before trial and well after the close of discovery, and then failing to advise either Defense counsel or the Court that this had occurred, resulting in sanctions more fully discussed in our Memorandum Opinion of September 20, 2010 (Doc. No. 236); and ending the trial by referring in her closing to the Cleveland Steel employee who allegedly harassed her client as "the Son of Sam," a known serial killer.*fn1 (N.T. June 23, 2010, p. 147.)

II. FACTS OF THE CASE

While this case was unnecessarily combative and overcomplicated by the lawyers, the facts are relatively simple and straightforward. Plaintiff, Lucy Rorrer, was an employee of Defendant, Cleveland Steel Container Corp., a steel pail manufacturing company. Although Plaintiff was employed at Cleveland Steel starting in 2000, the unrefuted evidence established that her work schedule was not steady and included extended layoffs. Indeed, Plaintiff was referred to as a part-time employee, and, as characterized by her counsel, "she was subject to lay-offs, . . . . Sometimes it would be a week here. Sometimes it would be a month here. Sometimes it would be two months. Sometimes it would be more, and it was scattered through the years." (N.T. June 14, 2010, p. 23.) Plaintiff was laid off from August 2005 until April 2006, a fact which is particularly relevant to one of the central issues before the Court. (Def.'s Trial Exs. 111, 112.)

The crux of Plaintiff's claims pertain to an incident occurring on August 1, 2006. On that date, Plaintiff was working alongside a conveyor belt with her co-worker, Richard Gilbert, who she claimed had previously harassed female employees. Plaintiff was running what is referred to as a double fitting machine while Gilbert fed pieces of steel into the machine. Both employees had stopped working so that Gilbert could use a box cutter to open a new box of materials. Plaintiff claimed that after opening the box, Gilbert reached towards her with the box cutter, pressed it into her left breast and looked like he was "going to kill her." (N.T. June 15, 2010, pp. 33-34.)

Plaintiff's expert witness, Dr. Robert Toborowsky, testified that, as a consequence of this incident, Plaintiff suffers from chronic post-traumatic stress disorder, which has resulted in her total impairment, both socially and occupationally. (N.T. June 17, 2010, pp. 70-76.) Defendant's expert, Dr. Annie Steinberg, disputed this diagnosis and opined that Plaintiff did not meet the diagnostic criteria for post-traumatic stress disorder, and that her symptoms better matched other disorders not related to the August 1, 2006 incident. Defendant's expert explained that Plaintiff was more likely suffering from anxiolytic-induced disorder, which she described as symptoms and behaviors induced by overmedication. Defendant's expert also testified that there was the possibility of malingering, or exaggerating, on Plaintiff's part for personal financial gain. (See N.T. June 22, 2010, pp. 84-85.)

III. RELEVANT PROCEDURAL AND FACTUAL HISTORY

Discovery and pretrial motion practice in this case were overly contentious.During the discovery period alone, the parties filed seven motions to compel discovery (Doc. Nos. 26, 50, 54, 56, 57, 79, 80) as well as a motion for sanctions and a motion for a protective order (Doc. Nos. 44, 49). The Court held a hearing to address many of the outstanding motions on April 3, 2009 and then engaged in subsequent telephone conferences to deal with additional motions. Pretrial, fifteen motions in limine and motions to exclude were filed. (See Order, May 19, 2010, Doc. No. 181.)

While settlement negotiations are normally not relevant in addressing post-verdict motions, because Plaintiff's motion for a new trial has raised this issue in a variety of contexts, we also take time to explain that process.

The Honorable L. Felipe Restrepo held the first settlement conference in this matter on January 30, 2009. The parties reconvened before Judge Restrepo on February 9, 2009. At that point Plaintiff had an opportunity to receive a total of $325,000 in settlement proceeds: $200,000 offered by Defendant for the Title VII claims and $125,000 she received from Liberty Mutual for a workers' compensation claim. Plaintiffs' demand before Judge Restrepo was $1 million. A third settlement conference was scheduled by Judge Restrepo for November 6, 2009 and the Court suspended the Third Amended Scheduling Order to facilitate this process (Doc. No. 86). However, no settlement was reached. During trial, Defense counsel indicated that Cleveland Steel had recently offered $150,000 to settle the Title VII claims, and that the offer was still on the table. (N.T. June 17, 2010, p. 5.)

Trial finally commenced on June 11, 2010 on claims of severe and pervasive sexual harassment discrimination.*fn2 After the completion of Plaintiff's case in chief, Defendant raised a Rule 50(a)(i) motion, arguing "that a reasonable jury would not have a legally sufficient evidentiary basis" to find for Plaintiff. (Doc. No. 197.) This motion was granted in part, dismissing Plaintiff's claim of pervasive harassment. A detailed explanation of our reasoning in dismissing this claim is set out in the record.(N.T. June 23, 2010, vol. 1, pp. 3-13.) In short, Defendant's motion was granted as to the claim of pervasive harassment because Plaintiff had been laid off for an extended period of time during the alleged period of harassment, thus, greatly dissipating the effects of any harassment prior to the layoff. See Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 715-16 (3d Cir. 1997), cert. denied, 522 U.S. 1128 (1998) (finding that 8-month break in employment "provided an opportunity for the lingering effects of the prior incidents [of harassment] to dissipate").

The issue of whether the August 1, 2006 box cutter incident was "severe" was submitted to the jury, which found in favor of Defendant. Specifically, the jury found that: (1) Gilbert's conduct towards Plaintiff on August 1, 2006 was intentional and because of her sex; (2) the incident was unwelcome; and (3) Plaintiff had not proven by a preponderance of the evidence that she believed the conduct towards her was severe enough to render her work environment hostile or abusive.*fn3

On June 28, 2010, in accordance with our Rule 50 dismissal of the pervasive claim and the jury's verdict, judgment was entered in favor of Defendant. On July 23, 2010, Plaintiff filed a motion for a new trial, seeking to have the verdict of the jury set aside and a new trial scheduled pursuant to Federal Rule of Civil Procedure 59.

Plaintiff's motion for a new trial failed to include a brief in support of the motion as required by United States District Court of the Eastern District of Pennsylvania Local Rule 7.1(c). This rule requires that every motion not certified as uncontested be "accompanied by a brief containing a concise statement of the legal contentions and authorities relied upon in support of the motion." Plaintiff's motion also failed to cite to any legal authority or provide any references to the trial record. See Marcavage v. Bd. of Trs., 2002 U.S. Dist. LEXIS 19397, at * 9 n.8 (E.D. Pa. Sept. 30, 2002) ("Under our district's local rules, failure to cite to any applicable law is enough to deny a motion as without merit since zeal and advocacy is never an appropriate substitute for case law and statutory authority in dealings with the Court.").

Plaintiff's failure to comply with Local Rule 7.1(c) could have justified dismissal of her motion without any further consideration. See e.g., Equip. Fin., LLC v. Hutchison, 2010 U.S. Dist. LEXIS 102402, at *11, *16-17 (E.D. Pa. Sept. 24, 2010) (denying summary judgment and finding "defendants' mere citation of the statute of frauds without any meaningful discussion of its applicability and without citing other authority in support of its argument . . . insufficient under Local Rule 7.1(c)"); Miller v. Cadmus Commc'ns, 2010 U.S. Dist. LEXIS 19283, at *12 (E.D. Pa. Mar. 1, 2010) (motion deemed "unopposed" due to failure to offer meaningful legal discussion); Depace v. Jefferson Health Sys., Inc., 2004 U.S. Dist. LEXIS 24905, at *1 n.1 (E.D. Pa. Dec. 7, 2004) (finding that counsel's wholesale extraction of nearly ten pages from plaintiff's amended complaint called to mind the Seventh Circuit's admonition regarding the virtue of clarity in legal briefs: "Judges are not like pigs, hunting for truffles buried in briefs"); Woods v. Cohen, 1999 U.S. Dist. LEXIS 1556, at *7-8, *10 (E.D. Pa. Feb. 1, 1999) (noting that Local Rule 7.1(c) requires that motions be accompanied by a brief containing factual authorities and indicating that parties are expected to cite to specific sections of the record, including the appropriate transcript pages).

Defendant filed a timely response in opposition, requesting that Plaintiff's motion be dismissed due to its numerous procedural deficiencies. Plaintiff responded with a "Motion for Permission to File Reply Brief," which was substantively a request for a briefing schedule.

Despite the procedural deficiencies in Plaintiff's motion for a new trial, the authority noted above-which would have clearly supported dismissal of Plaintiff's motion without consideration of her eighty-plus claims-and Defendant's strenuous urging that Plaintiff's motion be dismissed outright, we declined to do so, opting to consider Plaintiff's claims on the merits.

On December 13, 2010, finding Plaintiff's motion for a new trial too unwieldy to address without record cites, we ordered Plaintiff to supplement her submission with specific cites to the record.*fn4 Plaintiff responded by submitting an amended motion for a new trial on January 11, 2011, adding citations to some, but not all, of her claims. Additionally, despite all of Plaintiff's procedural missteps leading up to this point, many of the record cites finally provided by Plaintiff did not accurately reference or pertain to her claims. Other cites are nowhere to be found in the record and appear to have been plucked from thin air.

IV. STANDARD OF REVIEW

Federal Rule of Civil Procedure 59 permits a court to grant a new trial "on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." FED. R. CIV. P. 59(a)(1)(A). New trials may be granted "(1) when the jury's verdict is against the clear weight of the evidence and a new trial must be granted to prevent a miscarriage of justice; (2) when the verdict is internally inconsistent; and (3) when prevailing counsel committed misconduct and there is a "reasonabl[e] probab[ility] that the verdict was influenced by prejudicial statements." Waddington N. Am., Inc. v. Sabert Corp., 2011 WL 3444150, at *4 (D.N.J. Aug. 5, 2011) (internal citations omitted).

The decision to grant or deny a new trial is within the sound discretion of the trial court. Davis v. Mountaire Farms, Inc., 598 F. Supp. 2d 582, 587 (D. Del. 2009) (citing Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)). The court's level of discretion varies depending on the type of error alleged. Reynolds v. Univ. of Pennsylvania, 747 F. Supp. 2d 522, 533 (E.D. Pa. 2010) (citing Klein v. Hollins, 992 F.2d 1285, 1289-90 (3d Cir. 1993)). Where a new trial is sought on the ground that the jury's verdict was against the weight of the evidence, the court may grant the motion "only where the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience." Id. (citing Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir.1991)). "This high standard provides due respect for the jury's primary function as factfinder." Id. (citing Otos Tech., Co., Ltd. v. OGK America, Inc., 2007 WL 2374995, at *3 (D.N.J. Aug. 13, 2007)).

Where a party moves for a new trial based on alleged trial error, the court has broader discretion. Klein v. Hollins, 992 F.2d 1285, 1289-90 (3d Cir. 1993). In such instances, the court conducts a two-part inquiry: (1) whether an error was in fact committed; and (2) whether that error was so prejudicial that denial of a new trial would be "inconsistent with substantial justice." Reynolds, 747 F. Supp. 2d at 522 (citing Farra v. Stanley-Bostitch, Inc., 838 F.Supp. 1021, 1026 (E.D. Pa. 1993)). In determining prejudice under the second prong, "a new trial must be granted unless it is highly probable that [the erroneous ruling] did not affect the [objecting party's] substantial rights." Id. (quoting Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600-02 (E.D. Pa. 1989), aff'd, 922 F.2d 184 (3d Cir. 1990)).

V. ANALYSIS

In an attempt to adequately respond to Plaintiff's claims in an organized, workable fashion, we have grouped them into categories as follows: (A) The granting of Defendant's Rule 50 motion regarding Plaintiff's pervasive harassment claim; (B) Allegations that the verdict was against the weight of the evidence; (C) Issues related to the admissibility of evidence; (D) Alleged errors in the instructions to the jury; and (E) The Court's alleged bias against Plaintiff's counsel.

A. Dismissal of Plaintiff's Pervasive Harassment Claim

Federal Rule of Civil Procedure 50(a) provides that a court may grant a moving party judgment as a matter of law on any issue where the non-moving party has been fully heard and "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." FED. R. CIV. P. 50(a)(1). After careful review of the record, we conclude that it was not error to dismiss Plaintiff's pervasiveness claim.

In determining the existence of a hostile work environment, a court must examine the "totality of the circumstances," rather than assessing each piece of evidence in isolation. Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990). In making this determination, a court may look to: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance. Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Importantly, the United States Court of Appeals for the Third Circuit has held that when a plaintiff has a break in employment for many months, the effects of any alleged harassment prior to the break can "dissipate." Konstantopoulos v. Westvaco Corp., 112 F.3d at 710, 715-16 (3d Cir. 1997).

InKonstantopoulos, the plaintiff alleged that she had suffered sexual harassment from April 1989 to August 1989, left her employment for eight months, and upon returning in April1990 was subjected to more sexual harassment. Id. at 712-14. The court found that the plaintiff could not establish a hostile work environment as the "lingering effects" of the harassment that occurred from April through August 1989 had dissipated by the time she returned to work in April of 1990. Id. at 716. The court emphasized that after leaving her employment in 1989, the plaintiff repeatedly stated that she was "ready, willing and able to return to work." These statements suggested that, in the plaintiff's mind, the effects of the prior incidents had faded before she actually returned to work. Id. The few incidents that occurred when the plaintiff returned to work, consisting of gestures made by male co-workers' squinting their eyes and shaking their fists at her, were not sufficiently numerous or severe enough to warrant the conclusion that the working environment remained hostile or abusive. Id.

The principles enumerated in Kostantopoulos squarely apply here. The evidence presented at trial conclusively established that Plaintiff was laid off for eight months, from August 2005 to April 2006. (Def.'s Trial Exs. 111, 112.) Plaintiff voluntarily returned to work and testified that generally, upon her return from a layoff, Gilbert did not "act differently" than he had previously, and specifically that when she returned from her layoff in April 2006, Gilbert stared at her breasts "all the time." (N.T. June 15, 2010, pp. 151, 170.) Thus, viewing the facts in the light most favorable to Plaintiff, after her eight-month layoff, aside from the August 1, 2006 incident, the only possible evidence of harassment established by Plaintiff was that Gilbert stared at her breasts. This type of conduct is not sufficient to support a claim of severe or pervasive harassment. See Willauer v. Riley Sales, Inc., 2009 WL 2959822, at *5 (E.D. Pa. Sept. 16, 2009) (finding that "[t]he conduct that [p]laintiff alleges is not pervasive. Plaintiff's charges are mostly of isolated incidents. The only conduct that occurred with any frequency-the [breast] staring-was not severe.")

Additionally, like the plaintiff in Konstantopoulos, Plaintiff indicated that she liked working at Cleveland Steel and she thought she would be there until she retired. (N.T. June 15, 2010, p. 137; N.T. June 23, 2010, p. 92.) As her counsel stated in her opening argument: "[S]he would always come back to the same job. And she loved this job. She was good -- she thought -- she had a lot of pridein what she was doing." (N.T. June 15, 2010, p. 30.) Plaintiff's willingness to return to work after her layoff suggests that, in her mind, the effects of the prior incidents had dissipated before she returned to work. See Konstantopoulos, 112 F.3d at 716.*fn5

Further, Plaintiff was unable to point to any alleged harassment of other women in the period between her return to work and August 1, 2006.Considering Plaintiff's part-time status and her extended layoff, which ended just months prior to August 1, 2006, and after considering the totality of the circumstances, we found the August 1, 2006 incident to be an isolated event that could not, standing alone, be used to support a claim of continuing, pervasive harassment.*fn6

On this issue, Plaintiff alleges "substantial prejudicial error" in that the Defendant was allowed to present a "new theory of defense" based on payroll documents that were not produced in discovery. Without any support, Plaintiff audaciously claims that Defendant purposely concealed records of Plaintiff's purported layoffs and then convinced the Court, ex parte, that there was no dispute as to the timing and length of Plaintiff's layoff. (Pl.'s Mot. ¶ 5.)

This alleged discovery violation was extensively addressed at the pretrial hearing held on June 14, 2010. (See N.T. June 14, 2010, pp. 22-47.) There, Defense counsel indicated she would offer two witnesses to establish the dates of Plaintiff's layoff: Ed Umstead,the General Manager of Cleveland Steel's Quakertown plant, and Ruth Stoudt, an administrative assistant, who would both testify that Plaintiff was laid off from August 2005 to April 2006. (Id. at 37-38.) Plaintiff's counsel fails to mention that Umstead and Stoudt had previously been deposed. Defense counsel also advised at the pretrial hearing that she would rely on Plaintiff's tax return documents, which were in Plaintiff's possession at the time, to establish lapses in Plaintiff's work schedule. Further, Defense counsel offered that she may rely upon Plaintiff's payroll records to demonstrate Plaintiff's employment dates. Although Plaintiff's payroll records had not been previously produced, they were never requested during the discovery period by Plaintiff. (Id. at 36, 44.) Indeed, Plaintiff never filed a motion to compel those documents or otherwise raised this issue. (Def.'s Resp. ¶ 5.) Nonetheless, out of an abundance of caution, Defense counsel was ordered to send the payroll records to Plaintiff's counsel, which Plaintiff received prior to trial. Plaintiff's counsel was advised that if she wished to reconvene the depositions of Umstead and Stoudt, she could do so. This offer was declined. (N.T. June 14, 2010, pp. 46-47.)

Plaintiff's claim of "prejudicial error" regarding this discovery issue is meritless because Plaintiff and her counsel knew, or could have easily determined, the days Plaintiff worked and when the layoff occurred. Indeed, Plaintiff testified that she could obtain records of her employment using the PIN assigned to her by the PA Unemployment Compensation office. (N.T. June 16, 2010, pp. 156-58.)

Most incredibly, Plaintiff's counsel continues to claim error on this issue despite the fact that Plaintiff confirmed that the information in the payroll records-the focus of this alleged "prejudicial error"-was correct. (Id. at 167-70) (demonstrating Plaintiff agreed that the documents showed that her last day of work in 2005 was August 4 and her first day of work in 2006 was April 3). Indeed, Plaintiff's counsel readily conceded that she was aware of her client's on-again, off-again employment. When asked how Plaintiff legitimately received unemployment compensation if she was in fact employed at Cleveland Steel, Plaintiff's counsel responded:

Because she was what they call a part-time employee, and she was subject to layoffs, I guess at the company. Sometimes it would be a week here. Sometimes it would be a month here. Sometimes it would be two months. Sometimes it would be more, and it was scattered through the years. (N.T. June 14, 2010, p. 23.) Given the unrefuted evidence that Plaintiff's employment at Cleveland Steel was sporadic, a point both Plaintiff and her counsel conceded, Plaintiff's pervasive harassment claim was properly dismissed pursuant to Konstantopoulos.

B. The Jury Verdict Was Not Against the Weight of the Evidence

Plaintiff next argues that the jury's verdict regarding her "severe" discrimination claim was against the weight of the evidence.*fn7 A review of the trial record reflects that the jury's verdict in no way "resulted in a miscarriage of justice" or that the verdict "cries out to be overturned or shocks our conscience." See Reynolds v. Univ. of Pennsylvania, 747 F. Supp. 2d 522, 533 (E.D. Pa. 2010) (citing Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir.1991)).

At trial, Plaintiff testified that she never saw the box cutter when Gilbert pressed it against her, but rather felt pressure on the side of her breast. She also testified that the box cutter was closed-that is, the blade was inside its case-and that when the incident occurred, Gilbert did not say anything threatening to her except "slow down." (N.T. June 15, 2010, pp. 181-82; N.T. June 16, 2010, pp. 99-106.) There was also no evidence that Plaintiff was physically injured by the incident.

Courts have found that far more extreme incidents do not rise to the level of the severity required for a hostile work environment. See e.g., Carattini v. Woods Servs., Inc., 2010 WL 447453, at *1, *3 (E.D. Pa. Feb. 4, 2010) (finding incident in which plaintiff claimed her co-worker "grabbed her breasts and vagina while both were working in a laundry room . . . that she screamed and exited the laundry room . . . but that [her co-worker] followed her and continued to harass her" did not rise to the level of severity required for hostile work environment); Saidu-Kamara v. Parkway Corp., 155 F. Supp. 2d 436, 439-40 (E.D. Pa. 2001) (granting summary judgment for defendant on hostile work environment claim where plaintiff asserted that her supervisor: (1) touched her breast, told her that she looked "fresh" and propositioned her to join him later that evening; (2) made several suggestive comments about plaintiff's eyes and offered his financial assistance if plaintiff would go out with him;

(3) removed a bottle of wine from his pants, offered plaintiff a drink and asked her to join him at a hotel where they could have a "good time;" and (4) patted plaintiff on the breast and buttocks after complimenting her on good work); McGraw v. Wyeth-Ayerst Labs., 1997 WL 799437, at *1-2 (E.D. Pa. Dec. 30, 1997) (finding supervisor's repeated requests for a date, kissing plaintiff without her consent, "forcing his tongue into her mouth," touching plaintiff's face, and yelling at her on one occasion not severe enough to create a hostile work environment).

In addition, the jury considered the evidence in conjunction with the testimony of Defendant's expert, Dr. Annie Steinberg, a psychiatrist, who opined that Plaintiff's emotional and mental problems were more likely a result of her addiction to a powerful combination of psychotropic medications than the box cutter incident. (N.T. June 22, 2010, pp. 84-104.) Based upon the evidence at trial, a reasonable jury could find that Plaintiff, while clearly upset, did not find Gilbert's conduct towards her to be severe enough to render her work environment hostile or abusive.*fn8

C. Allegations Regarding the Admissibility of Evidence

1. Evidence of Vague, Undated Allegations of Sexual ...


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