The opinion of the court was delivered by: Judge Conner
Amanda Robinson ("Robinson") brings this action against Caterpillar Logistics Services, Inc. ("Caterpillar") alleging that during her employment with Caterpillar she was the recipient of unlawful sexual harassment, sex-discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Rights Act, 43 PA. CONS. STAT. § 951 et seq.. Presently before the court is Caterpillar's motion for summary judgment (Doc. 21). For the reasons that follow, the motion with be granted.
On July 20, 2007, Caterpillar hired plaintiff Amanda Robinson as a part-time, supplemental materials specialist at its York, Pennsylvania facility. (Doc. 25 ¶ 5; Doc. 28 ¶ 5). Robinson's responsibilities as a materials specialist included moving parts from large shelving units and transporting them to the shipping dock. (Doc. 25 ¶ 6; Doc. 28 ¶ 6). During her employment Robinson uniformly met her production goals, and she never received reprimands or other disciplinary action. (Doc. 25 ¶ 15; Doc. 28 ¶ 15).
Josh Perry ("Perry"), the alleged harasser, began working for Caterpillar at the York facility on April 9, 2008, as a supplemental employee contracted through a third-party staffing agency. (Doc. 30, Ex. 1 ¶ 8). He continued as a supplemental employee through the third-party staffing agency until Caterpillar hired him as a full time regular employee on July 28, 2008. (Doc. 30, Ex. 1 ¶ 9; see also Doc. 29, Ex. 2.B).
Supplemental employees of Caterpillar, like Robinson, lack the contractual protections of collective bargaining enjoyed by most regular, full-time employees.*fn2
Pursuant to a letter of agreement under the Collective Bargaining Agreement between the United Automobile Aerospace and Agricultural Implement Workers, Local Union 786 ("the Union"), and Caterpillar Inc. (which includes Caterpillar Logistics Services, Inc.), regular full-time employees retain contractual rights including the right not to be discharged without just cause. (Doc. 25 ¶ 9; Doc. 28 ¶9). In addition, the Union maintains the right to grieve and arbitrate disputes regarding whether a regular, full-time employee's termination was for just cause.
(Doc. 25 ¶¶ 8, 10; Doc. 28 ¶¶ 8, 10). However, regular full-time employees are subject to a ninety (90) day probationary period during which time the grievance and arbitration provisions are inapplicable for claims of wrongful layoff or discharge. (Doc. 29, Ex. 2.A).
The letter of agreement also defines and severely limits the employment benefits of supplemental employees. Supplemental employees are those employees "hired or contracted by the Company to work forty (40) or more hours per week on a temporary or indefinite basis," or "only within the Caterpillar Logistics Services facilities, employees hired or contracted by the Company to work less than forty (40) hours per week." (Doc. 25 ¶ 8; Doc. 28 ¶ 8; Doc. 26, Ex. 1 at 12-13). Supplemental employees do not accrue any contractual rights, seniority rights or benefits and they "may be terminated at any time for any reason." (Doc. 25 ¶ 9; Doc. 28 ¶ 9; Doc. 26, Ex. 1 at 14, 15). Wrongful termination or discharge claims asserted by supplemental employees are not subject to the letter of agreement's grievance and arbitration provisions unless the discharge is based upon personal prejudice or union activity. (Doc. 25 ¶ 10; Doc. 28 ¶ 10; Doc. 26, Ex. 1, at 15). When a supplemental employee is hired as a regular full-time employee, the employee receives credit for all the days worked as a supplemental employee for purposes of completing the ninety (90) day probationary period of a regular, full-time employee. (See Doc. 30, Ex. 1 ¶ 6; see also Doc. 26, Ex. 1, at 15).
B. Caterpillar's Policies
At all times relevant to the instant action, Caterpillar maintained a prohibited harassment policy, an equal employment opportunity policy, and a facility equal employment opportunity complaint procedure. (Doc. 25 ¶ 16; Doc. 28 ¶ 16). Caterpillar posted the policies at its York, Pennsylvania facility, and when she was hired, Robinson received copies of, and training on, the policies. (Doc. 25 ¶¶ 17, 24; Doc. 28 ¶¶ 17, 24).
The harassment policy states, in pertinent part:
Caterpillar will not tolerate any form of illegal harassment by or against its applicants and its employees in the course of their employment. . . .
Illegal harassment may consist of unwelcome conduct, whether verbal, physical, or visual, that is based on a person's sex . . . . Harassment may include conduct, comments, gestures, pictures or teasing that belittles or shows hostility toward an individual because of her/his protected status. Sexual harassment, for example, may include unwelcome sexual advances, requests for sexual favors, obscene language or gestures, joking, displaying obscene materials, patting, pinching or brushing against a person and other physical, verbal or visual conduct based on a person's sex.. . .
Everyone at Caterpillar is prohibited from engaging in conduct that could be considered unlawful harassment or lead to a claim of unlawful harassment. (Doc. 26, Ex. 3). Employees who have witnessed or experienced harassment are instructed to immediately notify an area supervisor, department manager, facility EEO coordinator, human resources manager, or contact the corporate EEO manager. (Id.) The policy notes that violators of the policy are subject to disciplinary measures up to and including discharge. (Id.) The equal employment policy states that "Caterpillar's policy is that all employment practices be conducted in such a manner as to not discriminate against any employee . . . due to a person's sex . . . and to provide a work environment which is free from any form of unlawful harassment." (Doc. 26, Ex. 4). Finally, the equal employment opportunity complaint procedure directs: "If an employee or applicant initiates questions, suggestions or complaints regarding equal employment matters, contact . . . , Fcaility EEO/AA Coordinator . . . to discuss complaints and allegations of discrimination." (Doc. 26, Ex. 5).
Robinson alleges that, beginning in late August 2008, her co-worker Perry, also a materials specialist at the York facility, subjected her to sexual harassment. (Doc. 25 ¶ 27; Doc. 28 ¶ 27). Both Robinson and Perry reported directly to Leon Bellan ("Bellan"). (Doc. 25 ¶¶ 7, 28; Doc. 28 ¶¶ 7, 28).
During the first incident of harassment, Robinson alleges that Perry told her that his wife was interested in having a threesome with her. (Doc. 25 ¶ 30; Doc. 28 ¶ 30). Perry made no other statements, and Robinson did not respond to the comment. (Doc. 25 ¶ 30; Doc. 28 ¶ 30). Two or three days later, Perry made another comment about his wife's interest. (Doc. 25 ¶ 31; Doc. 28 ¶ 31). Although co-workers were present in the area, they were not close enough to hear the comment. (Doc. 25 ¶ 31; Doc. 28 ¶ 31). Again, Robinson did not respond, and Perry said nothing else. (Doc. 25 ¶ 31; Doc. 28 ¶ 31). Approximately five or six days after the second incident Perry purportedly told Robinson that his wife always tells him that "the size of his penis is like an aerosol can." (Doc. 25 ¶ 32; Doc. 28 ¶ 32). Perry "shushed" Robinson to indicate she should not tell anyone. (Doc. 25 ¶ 32; Doc. 28 ¶ 32). Robinson made no comment, and Perry said nothing else. (Doc. 25 ¶ 32; Doc. 28 ¶ 32). Co-worker Tiffany Smith ("Smith") was present during the incident, but neither Smith, nor Robinson reported the incident to management at that time. (Doc. 25 ¶ 32; Doc. 28 ¶ 32). At some point, Perry repeated his comment about the "aerosol can" to Robinson, this time in the presence of employees Nate Linton ("Linton") and Wes Jenkins ("Jenkins"). (Doc. 25 ¶ 33; Doc. 28 ¶ 33). No one reported the comment to management at that time. (Doc. 25 ¶ 33; Doc. 28 ¶ 33). About one week after the "threesome" and "aerosol can" comments Perry told Robinson that "he had an itch between his legs" and asked if Robinson would "itch it for him." (Doc. 25 ¶ 34; Doc. 28 ¶ 34). No one else was present for this incident. (Doc. 25 ¶ 33; Doc. 28 ¶ 33).
In addition to the comments, on three occasions in September 2008, Perry exposed himself to Robinson. On the first occasion, Perry exposed himself as he drove by Robinson on a forklift. (Doc. 25 ¶ 36; Doc. 28 ¶ 36). The two did not exchange words and no one else was present. (Doc. 25 ¶ 36; Doc. 28 ¶ 36). Approximately two or three days after the first incident, Perry again exposed himself to Robinson while he was sitting on a forklift. (Doc. 25 ¶ 37; Doc. 28 ¶ 37). Again the two did not exchange words, and although Linton and Jenkins were nearby, they did not witness Perry expose himself. (Doc. 25 ¶ 37; Doc. 28 ¶ 37). On Tuesday, September 23, 2008, Perry exposed himself a third time, this time demanding that Robinson touch or grab him. (Doc. 25 ¶ 38; Doc. 28 ¶ 38). Robinson said nothing and left the area. (Doc. 25 ¶ 38; Doc. 28 ¶ 38).
Robinson immediately reported the incident to her co-worker Linton and asked that he contact a supervisor. (Doc. 25 ¶ 39; Doc. 28 ¶ 39). Upon being summoned by Linton, supervisor Richard Fry promptly came to the warehouse floor and escorted Robinson and Linton to an empty office. (Doc. 25 ¶ 40; Doc. 28 ¶ 40). Robinson's immediate supervisor, Bellan, arrived at the office a few minutes later. (Doc. 25 ¶ 40; Doc. 28 ¶ 40). Linton explained what Robinson told him, then returned to work. (Doc. 25 ¶ 41; Doc. 28 ¶ 41). Bellan then asked Robinson to explain what happened and Robinson described in detail all the incidents between her and Perry over the past month. (Doc. 25 ¶ 41; Doc. 28 ¶ 41). After listening to Robinson, Bellan summoned Perry to his office and indefinitely suspended him. (Doc. 25 ¶ 44; Doc. 28 ¶ 44). Bellan also emailed his manager, Roly Cruzet, detailing Robinson's complaint. (Doc. 25 ¶ 48; ...