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Costa v. Commonwealth of Pennsylvania Department of Revenue

United States District Court, W.D. Pennsylvania

March 25, 2014

AUGUST R. COSTA, Plaintiff,


CATHY BISSOON, District Judge.


For the reasons that follow, Defendant's Motion for Summary Judgment (Doc. 20) will be granted.


Plaintiff has brought this lawsuit under Title VII, alleging that his former employer terminated him in retaliation for having complained of sexual harassment by his supervisor, Terri Hopkins. Compl. (Doc. 1).[1] Plaintiff worked as a District Lottery Representative ("DLR") in Defendant's Pittsburgh Office from 2005 until his termination in August 2010. Pl.'s Resp. to Def.'s Stmt. of Facts (Doc. 25) at ¶ 1. Although Plaintiff had several different supervisors, at all relevant times he reported to Ms. Hopkins in her capacity as "Area Manager." Id. at ¶¶ 5, 6.

Plaintiff claims that, between the years 2005 and 2007, Ms. Hopkins subjected him to an ongoing course of sexual harassment. Specifically Plaintiff alleges that Ms. Hopkins attempted to initiate a sexual relationship with him through "flirtatious, unprofessional and unwelcome conduct." See Pl.'s Opp'n Br. (Doc. 24) at 2 (citing record evidence). Among other things, Plaintiff claims that Ms. Hopkins repeatedly called him on his personal telephone, outside of business hours, to discuss matters unrelated to work; she invited him out for drinks; she wore short skirts and low-cut blouses, and would cross her legs in front of Plaintiff and bend down to pick things up off the floor; she would brush against him; and, during one work outing, she invited him to her hotel room. See id.

Plaintiff claims that this conduct continued until "late 2007, " or "the fall of 2007, " when he complained to Defendant's executive director Ed Trees. See generally Pl.'s Resp. to Facts (Doc. 25) at ¶¶ 7, 157. In speaking to Mr. Trees, Plaintiff did not go into detail regarding Ms. Hopkins's alleged conduct, but rather spoke of office rumors regarding an alleged affair between her and Plaintiff:

I went to [Mr.] Trees about the rumors of us having an affair, [and said] I would like for them to stop because [Ms. Hopkins] did nothing to stop those and [she] thought it was humorous.... I also explained to him that she gave me personal cell phone calls in the evening. I did not discuss what went on [in] those particular phone calls[, but said that] I would like for [them] to stop, and [that] I would just like to be treated like every other employee.

See Pl.'s Dep. Tr. at 105 (attached under Doc. 21-1 at pg. 115 of 209); see also id. at 118-19 (admitting that he did not advise Mr. Trees regarding Ms. Hopkins asking him out for drinks, wearing revealing attire, asking him to her hotel room, et cetera ).

In response to Plaintiff's complaints, Mr. Trees asked him to discuss the matter with Ms. Hopkins directly, and he did so. See id. at 115. Regarding his discussion with Ms. Hopkins, Plaintiff has testified:

A. I went in and asked if I could close the door. She said yes. She [said, ] I know you met with Ed Trees[, ]... what happened? [I] told him about the personal cell phone calls that you make to me and how you are not squashing the rumors about me and you having an affair. I feel it's your duty as the... area office manager... to squash that. And [Mr. Trees] had advised me to tell you [about my complaints] if I felt comfortable enough, which I do because... we get along very well.... I said, Terri, I think all the personal cell phone calls should stop. The perception of us having an affair has to stop[, ] and basically that[ was] it.
Q. What did she say?
A. She said it won't occur anymore.
Q. No rage, or upset, or anger, anything like that?
A. I didn't witness anything.
Q [A]fter that did you get any more calls on your personal cell phone from [Ms. Hopkins]?
A. No.
Q. Any[ ]more provocative or odd approaches to you like that?
A. No.
Q. That all stopped?
A. Yes.

Id. at 117-18.

Plaintiff claims that, although Ms. Hopkins's purported sexual advances promptly ceased, she retaliated against him by initiating a "series of disciplinary actions" within two months of his complaints, and she "continued to discipline [him] over the years, which eventually had a direct influence and impact on the termination of [his] employment." Pl.'s Opp'n Br. (Doc. 24) at 2.

Given that Plaintiff was terminated nearly three years after his discussions with Mr. Trees and Ms. Hopkins, and notwithstanding his long and checkered history of work misconduct reflected in the record, Plaintiff attempts to string together a series of purportedly retaliatory actions on behalf of Ms. Hopkins. Contrary to Plaintiff's suggestion, however, individuals in Defendant's organizational hierarchy above Ms. Hopkins perceived problems with Plaintiff's behavior in advance of his 2007 complaints. The record also reveals incidents having little or no involvement by Ms. Hopkins, as well as instances of threatening and unprofessional behavior plainly admitted by Plaintiff.

The incidents are identified by approximate date and summarized below. The Court acknowledges that Plaintiff would, and does, dispute certain aspects of these summaries. While the Court remains mindful of its obligation to view the evidence in a light most favorable to Plaintiff, allowing him to recast every unfavorable aspect of the record would cause all discussions to degenerate into an endless cycle of "he said, they said." It suffices to say that, even accepting Plaintiff's interpretations to the extent they are remotely reasonable, Defendant nevertheless has demonstrated its entitlement to summary judgment.[2]

Incident in May 2006

In an email dated May 25, 2006, Defendant's human resources director, James Honchar, reported to other of Defendant's superiors as follows:

I received a call from Tom [Blaskiewicz, Defendant's deputy executive director of retail operations] today. Apparently there were a couple issues with [Plaintiff].... [Mr. Blaskiewicz] reported the following:
1. [Plaintiff] was very confrontational with [Ms. Hopkins] over the use of [computer] notebooks. While in part this is due to [a] lack of supervision..., [Plaintiff] hasn't used his notebook in 4 weeks.
2. [Plaintiff] was bragging how he referees sporting events and doesn't report it on his financial disclosure or state ethics forms.
3. [Plaintiff] doesn't have any approved supplementary employment ...

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