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Patricia Hall v. Guardsmark

May 3, 2012

PATRICIA HALL, PLAINTIFF,
v.
GUARDSMARK, LLC, DEFENDANT.



The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge

MEMORANDUM OPINION

Plaintiff, Patricia Hall, brings this action against Defendant, Guardsmark, LLC, alleging claims of sexual discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), and the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (PHRA), arising out of Guardsmark's alleged toleration of a hostile work environment and acts of retaliation, ultimately culminating in her constructive discharge from employment as a security officer on July 16, 2009.

Currently pending before the Court for disposition is a motion for summary judgment, filed by Defendant. For the reasons that follow, the motion will be granted with respect to the retaliation claims and denied in all other respects.

Facts

Plaintiff began working as a security officer with Guardsmark on August 6, 2008, at the BASF facility, a chemical plant, in Evans City, Pennsylvania. (Hall Dep. at 23:13, 16; 25:1-7.)*fn1

Two security officers were assigned to the BASF facility in each of three (3) shifts -- 8:00 a.m. to 4:00 p.m., 4:00 p.m. to midnight, and midnight to 8:00 a.m. The security officers were stationed in the BASF facility Gatehouse. (Hall Dep. at 37:6-11; 38:5-7.) Plaintiff trained at the BASF facility for two (2) weeks, during which time she was assigned to the 8:00 a.m. to 4:00 p.m. shift. (Hall Dep. at 38:13-19.)

Plaintiff worked the 8:00 a.m. to 4:00 p.m. shift with Security Officer Thomas Bova (her alleged harasser) for about one (1) week. (Hall Dep. at 47:2-5.) Upon completion of her training, Plaintiff was assigned to the 4:00 p.m. to midnight shift, which became her regular shift. (Hall Dep. at 38:23-39:9.)

Plaintiff worked the 4:00 p.m. to midnight shift with Bova for "about a week total." (Hall Dep. at 45:7-10; 47:6-11.) Plaintiff recalls two or three times when there was some overlap between shifts where she and Bova were in the Gatehouse together. (Hall Dep. at 47:19-48:3.) Altogether, however, Plaintiff and Bova only worked together on the same shift for two (2) weeks, and their shifts only overlapped two (2) or three (3) times putting them in contact with each other for only a few minutes. (Hall Dep. at 46:1-48:13; 91:8-92:20; Bova Dep. at 98:12-20.*fn2

Plaintiff received training on Guardsmark's sexual harassment policy when she began working at the BASF facility. Plaintiff was instructed that an employee who felt she had been sexually harassed was to report the harassment through the "chain of command." Further, the policy required any Guardsmark employee who believed she was the subject of sexual harassment to call and give an oral report immediately (preferably within 48 hours after the alleged harassment occurs) to her Manager in Charge and to the Sexual Harassment Policy Compliance Officers. (Hall Dep. at 26:2-23; 30:17-31:14; see also Sexual Harassment Policy at 36.*fn3

In August 2008, Plaintiff's chain of command began with Walter McCombs, her direct supervisor. McCombs, in turn, reported to Manager in Charge Katie Bohnke. (Hall Dep. at 27:2-22; McCombs Dep. at 59:12-14.*fn4) In April 2009, George Turner replaced Bohnke as the Manager in Charge. (Hall Dep. at 28:5-29:2; Turner Dep. at 9:3-5.*fn5

Bova was another security officer of Plaintiff s at Guardsmark's BASF facility. McCombs also supervised Bova. (McCombs Dep. at 82:1-3.) Plaintiff alleges that Bova harassed her, as detailed below.

The Chair Incident

In October or November 2008,*fn6 while working on post together, Bova and Plaintiff had an altercation. (Hall Dep. at 76:1-79:18; see ECF No. 29 Ex. 4.) According to Plaintiff, Bova was "yelling and screaming" at her, threw a chair at her and slammed a telephone (breaking it) during the incident in question. (Hall Dep. at 76:3-4, 22-23; 82:7-9; 9-12.)*fn7 Bova denied that he threw a chair, stating that he just got up quickly to leave when Plaintiff was yelling at him and the chair went in her direction. (Bova Dep. at 80:1-6.) The chair did not hit her. (Hall Dep. at 82:23-83:3.)

Both Plaintiff and Bova contacted their supervisor, McCombs, immediately to report the argument. (McCombs Dep. at 43:1-2, 10-13; 44:6-9, 17-45:11; Hall Dep. at 78:6-15.) McCombs told Plaintiff that he would have to do further investigations and report it to the main office. (McCombs Dep. at 46:19-20.)

The following day, Bohnke, the Manager in Charge, convened a meeting with McCombs, Plaintiff and Bova. Bohnke stated that she would not tolerate their conduct and instructed McCombs that Plaintiff and Bova were not to be scheduled on the same shift. (Hall Dep. at 84:11-86:14; McCombs Dep. at 59:4-11.) Plaintiff notes that McCombs told Bohnke that "I could do that, but it would still be . they have to at least see each other at least ten minutes out of the shift during the shift change." (McCombs Dep. at 59:23-60:3.) McCombs stated that he did not consider this change to constitute "action" to address Plaintiff's concerns. (McCombs Dep. at 70:6-8, 14-18.) He said "to me, an action would be a suspension or termination." (McCombs Dep. at 70:23-71:1.) McCombs stated that, other than being put on different shifts, "nothing further ever done that I knew of." (McCombs Dep. at 59:7-8.)

From that point until the end of Plaintiff's employment at Guardsmark, Bova was assigned to the midnight (overnight) shift while Plaintiff was assigned to the 4:00 p.m. to midnight shift. (Hall Dep. at 45:12-14; 47:12-48:7; McCombs Dep. at 59:4-60:3.)

Plaintiff indicates that she "regularly complained of sexual harassment by Bova several times a week during the shift change." (ECF No. 32 ¶ 58.) Defendant notes that Plaintiff does not cite her own deposition in support of this statement. Rather, McCombs states that: a) Plaintiff continued to complain that Bova was making sexual comments during shift changes/pass-ons (McCombs Dep. at 87:11-13); b) some weeks Plaintiff might "only" complain of harassment to McCombs "one or two times" whereas sometimes "it might have been every night" (McCombs Dep. at 87:20-23, 88:1-2); c) McCombs communicated the ongoing harassment to management "pretty much every time I heard about it" (McCombs Dep. at 87:14-19); d) McCombs passed Plaintiff's complaints on to Katie Bohnke (McCombs Dep. at 87:11-13); e) McCombs called Bohnke when he made the foregoing complaints (McCombs Dep. at 88:1-6); f) Bohnke took no action on the complaints other than to say "[j]ust . have them working different shifts and to try to keep them from talking to each other" (McCombs Dep. at 88:11-14); g) the harassment of Plaintiff by Bova continued up until the time Plaintiff and Bova were terminated (McCombs Dep. at 88:15-19); h) Bova also told McCombs he was sexually attracted to Plaintiff (McCombs Dep. at 81:16-18); i) McCombs also submitted a written report to Account Manager William Harache and Bohnke advising that Bova kept saying to him "that he would like to go out with [Plaintiff]," and reported that he had reminded Bova "quite a few" times to stop those comments (McCombs Dep. at 62:1-7, 63:1-4, 65:13-20); and j) McCombs has no information on any action taken by Harache or Bohnke on his report (McCombs Dep. at 66:4-8). However, Defendant has not explained why Plaintiff cannot refer to McCombs' deposition testimony to support her claims.

The Truck Comment

In April 2009, Plaintiff called McCombs and reported that Bova made the following comment to her: "don't get mad . . . I'd like to take you out to the parking lot and bend you over in the back of a truck and put it to you." (Hall Dep. at 118:1-3; 118:12-119:4; 122:3-7.) Plaintiff immediately reported the incident to McCombs on her way home, noting that "that's how upset I was about it." (Hall Dep. at 122:7.)

George Turner learned about Plaintiff's complaint in April 2009, shortly after being assigned the Pittsburgh branch of Guardsmark. (Turner Dep. at 16:3-11.) Plaintiff indicates that she told him "I couldn't take it no more. I even told him . I am going to quit. I can't take it no more." Turner advised her not to quit and said "I'll be out to take care of it." (Hall Dep. at 125:6-12.)

Parking Lot Incident

Plaintiff alleges that Bova attempted to run her over in the parking lot. McCombs confronted Bova about the incident and Bova described it as an "accident." (McCombs Dep. at 60:11, 61:4-5.) No action was taken as a result of this incident when McCombs passed it on to Bohnke and Harache. (McCombs Dep. at 61:14-20.)

Defendant responds that McCombs asked Bova about the incident and Bova stated that it was an accident, that McCombs himself "felt it could have been an accident" and that Guardsmark management reached the same conclusion. (McCombs Dep. at 61:1-18.) It further notes that Plaintiff never cited this incident, even though she was asked to describe all incidents of harassment by Bova. However, as noted above, McCombs can testify about it.

Bova's Alleged Comments to Other Security Officers

Plaintiff's co-workers informed her that: ! Bova encouraged a co-worker to "bodily harm himself and say that" [Plaintiff] did it. (Hall Dep. at 102:11-13); !Bova told Plaintiff's supervisors that she was "playing movies" on her shift (Hall Dep. at 102:19-21); !Bova told a female co-worker that Plaintiff called her "fat." (Hall Dep. at 103:3-13.)

Plaintiff did not report these alleged rumors to any Guardsmark supervisor. (Hall Dep. at 105:8-20.) She stated that "at the time they didn't want to hear nothing [sic]. Katie [Bohnke] didn't want to hear nothing. Bill [Harache] wouldn't say nothing. I tried to tell Bill Harache once about something with Mr. Bova and you know what he told me? 'If it don't concern you, don't concern yourself with it.' He never gave me a chance." (Hall Dep. at 105:12-17.) Plaintiff further testified that she attempted to tell Harache something about it "even after George started working. Bill didn't want to hear it." (Hall Dep. at 124:19-23.)

Comments That Plaintiff Alleges Bova Made to Third Parties

Plaintiff's co-worker informed her that Bova stated that certain girls "wanted to stick their fingers up his butt and check his prostate." This alleged comment was not made directly to Plaintiff by Bova (or even in her presence) and she failed to report it to Guardsmark management. (Hall Dep. at 108:19-109:5; 110:20-111:7.) Plaintiff states that "it was beyond reporting. They didn't want to hear nothing I had to say or anybody else. Anything that came from me to the supervisor, they did not want to hear." (Hall Dep. at 111:1-4.)

Plaintiff's co-worker informed her that Bova told certain girls who entered the BASF facility that they would, "look nice in a bikini." (Hall Dep. at 111:8-20; 168:12-15.) Plaintiff admits that Bova did not direct these alleged comments to her or even make ...


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