The opinion of the court was delivered by: (Judge Munley)
Before the court for disposition are motions for summary judgment filed by both defendants, Commonwealth of Pennsylvania Department of Corrections, SCI-Frackville, PA (hereinafter "DOC" or "prison") and Pennsylvania State Correctional Officer Association (hereinafter "PSCA" or "union") in this employment discrimination case instituted by Plaintiff Lourdes Roman-Malave. The parties have fully briefed the motions, and they are thus ripe for disposition.
Defendant DOC employed plaintiff, an Hispanic woman, beginning on September 25, 2006 as a correctional officer at the State Correctional Institution in Frackville, Pa. ("SCI-Frackville"). (Doc. 32, Union Statement of Facts ("USOF") ¶ 1; Doc. 39, Plaintiff's Ans. to USOF ¶ 1). Plaintiff worked until June 30, 2008 at which time she took a medical leave of absence. (USOF and Pl's Ans ¶ ¶ 4-5). After plaintiff had been on leave for more than one year, the prison informed her that if she did not return to work on July 21, 2009, her absence would be construed as a resignation. (Id. ¶ 6).*fn1 Plaintiff did not return to work on July 21, 2009, and the DOC construed her absence as a resignation. (Id. ¶ 16).
Plaintiff alleges that during her tenure at SCI-Frackville, she was subjected to a hostile work environment due to her gender and race/ancestry. She filed the instant lawsuit alleging discrimination on the part of her employer and on the part of her union for not aiding her. Her complaint alleges both state law and federal law claims of discrimination. At the close of discovery, the defendants each filed motions for summary judgment, bringing the case to its present posture. We will address them separately below.
As this case is brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII")*fn2 for unlawful employment discrimination, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56©)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. Int'l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248. A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
I. DOC motion for summary judgment
Plaintiff's complaint asserts the following causes of action against the DOC: Count I, national origin, ancestry and sex discrimination under Title VII; Count II, national origin, ancestry and sex discrimination under the Pennsylvania Human Relations Act ("PHRA")*fn3 ; Count III, retaliation under Title VII; Count IV, retaliation under the PHRA.*fn4 Although not asserted as a separate count, the plaintiff also avers that Defendant DOC "failed to properly train and supervise their administration and management in the proper handling of matters involving harassment, discrimination and a resultant hostile work environment." (Doc. 1, Compl. ¶ 23).
The DOC moves for summary judgment, and in support of the motion raises three general issues. It argues that plaintiff has failed to produce sufficient evidence to establish that the DOC is vicariously liable for any unlawful harassment; plaintiff has failed to exhaust her administrative remedies with regard to her failure to train claim; and plaintiff failed to exhaust her administrative remedies with regard to her retaliation claim. Additionally, the DOC claims that even if plaintiff had exhausted her remedies with regard to her failure to train claim and retaliation claim, she has not produced evidence to support these claims. We will discuss these issues in turn.
1. National origin/ancestry and sex discrimination
Generally, plaintiff's national origin/ancestry and sex discrimination claims involve allegations of a hostile work environment caused by a co-worker, Gerald Kodack. Thus, this is not a case of inappropriate sexual advances or sexual touching at the workplace. Rather it is a case alleging hostile treatment by a co-worker, who is not a supervisor, that is tinged with gender and racial/ancestry animus due to words used by the co-worker.*fn5 The Third Circuit Court of Appeals has explained this area of the law as follows:
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). It is well established that a plaintiff can demonstrate a violation of Title VII by proving that sexual harassment created a hostile or abusive work environment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986).
According to our precedent, to succeed in a sexual harassment claim based on a hostile work environment, the plaintiff must show five elements (1) the employee[ ] suffered intentional discrimination because of [her] sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.
Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999) (internal quotation marks and citations omitted)
In the instant case, Defendant DOC challenges the fifth element, that is the existence of ...