United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
ROBERT C. MITCHELL, Magistrate Judge.
Plaintiff, Tonya Carswell, proceeding pro se, brings this action against Defendants, her former employer, Monumental Life Insurance Company (Monumental),  and District Manager Ronald Ehalt, alleging claims of racial discrimination, sexual discrimination, hostile work environment and retaliation 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 their alleged creation and toleration of a hostile work environment and acts of retaliation, ultimately culminating in her constructive discharge from employment as a Monumental Career Agent on August 14, 2012.
Currently pending before the Court for disposition is a motion for summary judgment, filed by Defendants. For the reasons that follow, the motion will be granted with respect to Plaintiff's claims of sex and race discrimination and denied with respect to her claims of sexual and racial hostile work environment, constructive discharge and retaliation. In addition, the motion will be denied with respect to her claims against Ehalt under the PHRA.
Prior to setting for the relevant facts in this case, the Court makes the following observations. On April 14, 2014, Defendants submitted a Statement of Undisputed Facts in support of their motion for summary judgment (ECF No. 41). On a motion for summary judgment, a court must "view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Bouriez v. Carnegie Mellon Univ. , 585 F.3d 765, 770 (3d Cir. 2009) (citation omitted). Despite this legal principal, Defendants have not presented the facts in the light most favorable to Plaintiff as the nonmoving party, or even in a neutral manner. Rather, they have engaged in tactics such as: referring to her "allegations" even when she has proffered evidence in support of them; "paraphrasing" a document that stated that she would be terminated if she failed to meet a sales quota to say that she only "risked termination"; omitting from the incident in which Plaintiff was criticized for dressing casually the fact that she was not working at the time but only stopped by the office to pick up a form; reordering events so that the chronological sequence is obscured and there is no "build up" of incidents leading to Plaintiff's resignation; relying on an internal EEOC document which she denied receiving or having been made aware of to characterize her claims as meritless; omitting certain facts that would support Plaintiff's claims, including her testimony that she did report harassment to a senior company official prior to resigning; and attempting to limit Plaintiff's claims by having her confirm at her deposition that one incident was the "sole basis" for a certain claim even when the record is clear that other events would support it and by noting that she did not include every incident with Ehalt in her internal complaint (as though she failed to meet some complete exhaustion requirement) and ignoring her testimony that she intended to provide more details during the investigation, but was not given the opportunity.
On May 29, 2014, Plaintiff filed her submissions in response to Defendants' motion. Defendants correctly note that, contrary to Local Rule 56C, Plaintiff did not submit a responsive concise statement with numbered paragraphs and citations to the record to deny their statements. Nevertheless, the Court will not "deem admitted" all of Defendants' statements as they suggest is the proper course under Local Rule 56E, for several reasons. First, the Rule itself states that:
Alleged material facts set forth in the moving party's Concise Statement of Material Facts or in the opposing party's Responsive Concise Statement, which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.
LCvR 56E. As Defendants know, Plaintiff has submitted her own Statements of Undisputed Genuine Issues of Material Facts in support of her opposition (ECF No. 45). Thus, the Rule itself recognizes that the manner in which Plaintiff proceeded is acceptable.
Plaintiff's statements are not a model of clarity and she often combines facts with legal arguments and conclusions. Nevertheless, Plaintiff is proceeding pro se and the Court is required to liberally construe pro se filings, Haines v. Kerner , 404 U.S. 519, 520 (1972). More specifically, "the purpose of certain district court local rules pertaining to motions is the facilitation of the court's disposition of the motions, not punishment." Boswell v. Eoon, 452 F.App'x 107, 111 (3d Cir. 2011) (citation omitted). "Permitting the non-movant to rely on its briefing and evidentiary submissions to dispute the movant's 56.1 statement is consistent with the requirement at summary judgment that federal courts view the facts in the light most favorable to the non-moving party.'" Id. at 112 (quoting Jakimas v. Hoffmann-La Roche, Inc. , 485 F.3d 770, 777 (3d Cir. 2007)). Plaintiff's averments are supported by her brief and appendix of materials, even if she does not always link them properly.
On June 11, 2014, Defendants submitted a Counterstatement to Plaintiff's Statements (ECF No. 48) with numbered paragraphs and citations to the record, tracking Plaintiff's facts and responding thereto. Thus, as a whole the record does meet the requirements of the Local Rules and Federal Rule of Civil Procedure 56.
However, many of Defendants' responses "deny" Plaintiff's statements on the sole ground that she has cited no record support for them, a hyper technical argument that appears designed to take advantage of Plaintiff's pro se status. In fact, every statement Plaintiff makes about incidents that occurred at Monumental was previously made in one of a very few documents in the record: her internal complaint, her letter of resignation, and her EEOC charge. Defendants cannot contend that they are unaware of these documents.
In addition, Defendants' denials are particularly troubling when the record evidence that would either confirm or controvert Plaintiff's statement would naturally be within the possession of the company, rather than in the possession of a former employee. For example: Plaintiff states that she was twice named "top agent"; she asserts that she was the only black female agent in the Pittsburgh office and that there was one other (white) female agent and one black male agent; she indicates that she met her Minimum Placement Standard in July 2012 (prior to the August 15, 2012 deadline) and was not fired; and she notes that the threat of immediate termination in the April 2, 2012 letter for failure to meet her sales quota was not consistent with Monumental's practices. Because Monumental could easily have denied these averments, if they were untrue,  with record evidence in its possession but has not done so, it is a fair inference that Plaintiff's statements are in fact true. In any event, the inference will be drawn in Plaintiff's favor for purposes of the pending motion.
Bearing all of these considerations in mind, the Court has not taken either version of the facts as presented by the parties, but has culled the facts from the record and placed them in chronological order. The following are the relevant material facts, with all inferences drawn in Plaintiff's favor as the nonmoving party.
Monumental is engaged in the business of selling and servicing multiple lines of insurance products, including life, health, and property and casualty within various nationwide sales regions. (Ehalt Decl. ¶ 2.) Monumental merged with Transamerica Agency Network in 2012. (ECF No. 45 ¶ 1.) Each sales region is composed of numerous district offices. (Ehalt Decl. ¶ 2.) Each district office employs a single District Manager, one or more Sales Managers, one or more Agency Coordinators and multiple Sales Agents. (Id.) All of these positions are considered "field" positions as opposed to corporate or home office positions. (Id.)
Ronald Ehalt began working for Monumental in 1993 and is still employed by the Company. (Ehalt Decl. ¶ 3.) On January 1, 2004, Ehalt was promoted to the position of Regional Vice President. (Id.) Effective January 1, 2010, Ehalt became responsible for the offices in Region 3, which included Monumental's Pittsburgh office. (Id.) Effective July 1, 2011, Monumental repositioned Ehalt to the position of District Manager of the Pittsburgh office based on the pending retirement of the then District Manager, Vincent Crimbly. (Ehalt Decl. ¶ 4.)
Plaintiff began working for Monumental as a contract agent, also known as a Monumental Sales Associate, on or about March 6, 2010. (Carswell Dep. at 48.) Crimbly hired her as a Monumental Career Agent, assigned to the Pittsburgh office, on August 16, 2010. (Carswell Dep. at 49; Compl. ¶¶ 13-14.) Her direct supervisor was Sales Manager Rafal Kolankowski and Crimbly, as District Manager of the Pittsburgh office, was her second level supervisor. Crimbly testified that:
This young lady was a young widowed mother trying to raise five kids who had the knowledge and pain of losing a husband. Marketing wise, she was a perfect fit because I had a large book of business that I believe some or many customers would feel more comfortable dealing with a woman. And I felt she would be more comfortable in selling and explaining life insurance having the empathy of living through losing a husband with five kids that didn't have enough life insurance. She was a perfect hire in my mind because she served the market that I had to deal with. Young, black, female. That's a market. A combination of markets.
She was young, she worked hard. Sure she made mistakes. But it takes years, in my opinion, to train and develop and get to a solid career image. They just don't happen overnight. She listened to what I told her. She did what I told her. That's what I recall during my employment with Monumental.
(Crimbly Dep. at 35-36.)
As a Career Agent, she understood that her employment could be terminated "either by [herself], at any time, or by the Company, at any time, with or without cause, and with or without notice." (Carswell Dep. at 69-70; Carswell Dep. Ex. 8.) Upon hire, Monumental provided Plaintiff with one of its own prearranged "agencies, " or books of business/customers. (Carswell Dep. at 51-52.) She was originally assigned to Agency E112. (Carswell Dep. at 51-52.) Plaintiff was never disciplined during her employment with Monumental. (Carswell Dep. at 72.) On two occasions, she was named "top agent." (ECF No. 45 ¶ 17.) She resigned her employment with Monumental on August 14, 2012. (Carswell Dep. at 171; Carswell Dep. Ex. 17.)
Monumental has a Workplace Harassment Policy and Procedures which provides in part that "Monumental maintains a policy of zero tolerance prohibiting unlawful harassment with regard to an employee's race, color, religion, gender... or any other status protected by federal, state, or local equal employment opportunity laws." (Carswell Dep. at 59; Carswell Dep. Ex. 6.) The policy defines workplace harassment as:
unwelcome conduct, whether verbal, visual, or physical, that is based upon an individual's protected class, such as race, color, gender, etc., such action results in a tangible employment action, or that is severe or pervasive enough that it unreasonably interferes with an individual's work performance or otherwise creates an intimidating, coercive, hostile or offensive working environment.
(Carswell Dep. Ex. 6 at 1.) The policy provides that, if reporting an incident to an employee's district, "bristrict" or branch manager would be uncomfortable or otherwise ineffective, the employee should report the incident directly to the Area Manger or Regional Vice President overseeing his or her district, "bristrict" or Branch Office, the Field Human Resources or one of several listed administrative office contacts. ( Id. at 2.) "Supervisors and other management officials who witness or become aware of any incident(s) of workplace harassment must promptly report such incident(s) to one of the above-listed parties." (Id.)
Plaintiff acknowledged receipt of the Workplace Harassment Policy and Procedures as an employee of Monumental. (Carswell Dep. at 58-59; Carswell Dep. Exs. 6, 7.) She also acknowledged that Monumental's Workplace Harassment Policy and Procedures contained a complaint procedure, whereby she could report any complaint of discrimination or harassment occurring in the workplace. (Carswell Dep. at 58-61; Carswell Dep. Exs. 6, 7.)
Plaintiff signed and agreed to the terms of an Agent's Agreement with Monumental on August 13, 2010, when she was hired as a Career Agent. (Carswell Dep. at 66-68; Carswell Dep. Ex. 8.) Monumental notes that the Agent's Agreement stated that she had "no vested interest in any agency or territory to which [she] may be assigned, or the policies in force on such agency, now or in the future, " although Plaintiff indicated that she did not recall being aware of this at the time. (Carswell Dep. at 68-69; Carswell Dep. Ex. 8.) Monumental also notes that it reserved "the right to assign [her] to another agency; [and] to modify or alter the boundaries of the agency...." (Carswell Dep. at 68; Carswell Dep. Ex. 8.) Nevertheless, as explained below, Plaintiff has asserted that Ehalt told her that she would reacquire her agency when she returned from medical leave, but then reneged on this promise.
Plaintiff's Medical Leave of Absence
On July 19, 2011 (shortly after Ehalt replaced Crimbly as the District Manager for the Pittsburgh office), Plaintiff went on a medical leave of absence as a result of injuries she suffered in a car accident on April 4, 2011. (Carswell Dep. at 85-87.) Her doctor's note requested that she remain off work until a follow-up appointment on August 15, 2011. (ECF No. 46-1 at 12.) Within a month of the time Plaintiff left on a medical leave of absence, Ehalt gave her clients to Barbara Olsen-Douglas, a recently hired white woman. (ECF No. 46-1 at 18.) The office consisted of eleven agents, nine men (of which only one was a black man, Fernando Glenn) and two women, herself and Olsen-Douglas. (ECF No. 45 ¶¶ 37, 62; Carswell Dep. at 124.) Plaintiff attempted to come back to work in October but Ehalt told her that there was no agency for her because she had been gone too long. (ECF No. 45 ¶¶ 9, 24.)
On November 23, 2011, Plaintiff's physician wrote a note indicating that she could return to work, driving and using a laptop computer, for four hours a day, five days a week beginning December 1, 2011. Gary Barnes, the Senior Human Resources Professional Advisor, told her that she had to obtain a doctor's release without restrictions of driving or using a computer, but she was still not allowed to return to work at that time. She testified that, after she obtained a doctor's note satisfying Barnes' instructions, he changed the rules by insisting that she had to be released to work full time before she could be reinstated. (Carswell Dep. at 107-08; ECF No. 46-1 at 13.) See also Kolankowski Dep. at 16.
On December 21, 2011, Plaintiff submitted a note from her doctor indicating that she could return to work full time, without restrictions, on January 2, 2012, and she was allowed to return to work. (Carswell Dep. at 108; Carswell Dep. Ex. 12.) Monumental contends that it granted Plaintiff all of the leave that she had requested, but Plaintiff's testimony makes clear that she did not "request" more unpaid leave. Rather, she wanted to return to work but was not permitted to do so. (Carswell Dep. at 101, 107.) Plaintiff was assigned to Agency 2877 after she returned from her medical leave of absence. (Carswell Dep. at 115.)
Plaintiff Returns to Work
Plaintiff has indicated that, when she returned from medical leave on January 3, 2012, Ehalt was extremely hostile to her: she was not given a desk or mailbox, he told her that if another agent had not left she would be out of a job and he told her to ignore whatever Gary Barnes from HR had said to her. She asserts that Ehalt told her that she was penalized for the polices that she had written that lapsed while she was away, but she would receive no credit or commission for policies that did not lapse and they were not transferred back to her, despite Ehalt's prior indication that this would occur. (ECF No. 46-1 at 18, 22.) She has also testified that, while she was on medical leave, her laptop was stolen from her home (Carswell Dep. at 101) and she states that, although she faxed a copy of the police report to the company as instructed, Ehalt would not provide her with a laptop. (ECF No. 45 ¶ 23.)
Martin Luther King Day
January 16, 2012 was Martin Luther King Day for that year. Plaintiff testified that she learned that Ehalt had told the office administrator, Linda Sandusky, not to distribute a memorandum to office employees regarding Martin Luther King Day. (Carswell Dep. 125-27.) Sandusky testified that, to her knowledge, Martin Luther King Day is a holiday for Monumental employees and she stated that Ehalt told her not to tell anyone about it. (Sandusky Dep. at 22:8-25.)
Defendants state that Martin Luther King Day was not a designated holiday for field service employees. (Ehalt Decl. ¶ 5.) As a Career Agent in the Pittsburgh office, Carswell was a field service employee. (Ehalt Decl. ¶ 2.) They point out that Sandusky admitted that there were some differences between home office employees and field service employees but she did not know what they were. (Sandusky Dep. at 32-33.) Nevertheless, Sandusky testified that Ehalt told her not to tell anybody that it was a day off. (Sandusky Dep. at 22:21-23.)
Ehalt Comment re Plaintiff and Crimbly
Around this time, Plaintiff learned Ehalt had asked around the office if she obtained her job by having a sexual relationship with Crimbly. (Carswell Dep. at 140; Carswell Dep. Ex. 13.) Plaintiff states that Sandusky informed her that Ehalt had asked: "What was Vince thinking when he hired her? Was something going on between them two? Were they involved with each other in some type of way?" (Carswell Dep. at 141-42.) Sandusky also testified at her deposition to having heard Ehalt inquire if Plaintiff had been involved in a sexual relationship with Crimbly in order to obtain her job (Sandusky Dep. at 12:4-16) and submitted an affidavit to this effect (ECF No. 46-1 at 53). She also testified that John Mamakos (who became Plaintiff's direct supervisor after Kolankowski left) later told her that he heard the statement as well. (Sandusky Dep. at 28.) See also Meighan Aff. at 1.
Other Comments by Ehalt
Plaintiff testified that Ehalt insinuated that there were certain areas or neighborhoods that he would not waste time in because there was no money to be made there. (Carswell Dep. at 133, 137.) She interpreted this alleged comment to be racially motivated. (Carswell Dep. at 134.) Monumental contends that Plaintiff admitted that Ehalt did not specifically mention or identify the race of any of the neighborhoods. (Carswell Dep. at 134.) However, Kolankowski testified that, although Ehalt never directly said that he did not like black people, certain statements and actions on his part supported such a conclusion. (Kolankowski Dep. at 19.) When asked for an example, he said:
Well, Monumental Life has a lot of business in the inner city of Pittsburgh, and I guess you could say we were told that we don't want that type of business with the way Monumental and TransAmerica is going and these type of neighborhoods were mostly Afro-American neighborhoods. And that we don't want to deal with these types of people.
(Id. at 20.) In addition, Crimbly testified that the company - and specifically Ehalt - wanted to terminate the only other African American sales agent in the Pittsburgh office, Fernando Glenn, but he (Crimbly) fought against it and was able to overturn the decision to terminate Glenn. (Crimbly Dep. at 24-25, 33-34.)
Plaintiff also testified that Mamakos informed her that Ehalt had said that her agency did not "fit" her because it "consists of middle-class white people." Ehalt wanted to take this agency from her and give it to another agent. (Carswell Dep. at 139.)
Plaintiff's Internal Complaint
On February 22, 2012, Plaintiff filed an internal complaint with Monumental's Field Human Resources Department. (Carswell Dep. at 118; Carswell Dep. Ex. 13.) In this internal complaint, she stated that:
Mr. Ehalt has inflicted my emotional stress mixed with discrimination and intimidation. I feel that I am discriminated against first because Vince Crimbly hired me, second because I'm black and third, because I'm a woman. Ron Ehalt stated to me on my first day back to work had Dan [Dinardo]... not resigned the week before I came back to work, I would not have a position there, but the whole month of January till present he's conducting interviews to our fully staff[ed] office. I was replace[d] a month after I went on unpaid medical leave. Upon my return to work, I was not welcomed. I was totally ignored and not given any type of direction as far as where I was and what my part was as an employee until I asked out loud was I terminated? I had no mailbox and the desk I was at was no longer available to me. I was told by Ron Ehalt to ignore everything Gary Barnes explained to me upon returning back to work as far as my status in the company because what Gary Barnes says means nothing.
On Martin Luther King Holiday he made no mention that the holiday is acknowledged by our company, in fact, the office administrator was told not to give us the memo. His action to that is very offensive and degrading and it tells me racism is still alive and well in 2012 and I will not be respected as a black woman working at Monumental Life Ins. Co. from here on out. While I was on [FMLA leave] I had no income and my life, cancer and tap policies lapsed. On Tuesday, February 14th I ask[ed] Ron if could put my application thru his laptop and he said OK. Couple minutes later he ask if the policy was for me and I said yes it's for my children and myself, he then stated that he didn't see any children. I asked if he wanted to see pictures but he said no. On Friday, February 17th I produced my children in order for him to put my application thru. He then brought me his laptop and made me put my information in myself.
Ron Ehalt accused me of having a sexual relationship with Vince Crimbly to get my job, by asking around the office, Did Vince hire me because we were sleeping together.
I don't believe Ron's apology to the office to be sincere and I'm afraid for the reasons explained above that I will continue to be treated unfairly and inappropriately because his apology did not address anything he did personally to me. He blamed his divorce as a reason for his behavior, but getting a divorce doesn't strike me as a logical reason to attack me, ignore the fact that I am in fact a black woman and it offends me and lets me know that racism is alive at my work place. He has no reason to assume or accuse me of having sex with Vince Crimbly to get my job. I have six children that I'm raising by myself because my spouse is dead, being an insurance agent permits me to be a single working mother with no conflict. I am trying my best to be a successful agent. I'm new to the business but I'm learning and I believe I can go far. I believe I can be a great asset to this company, but from where I sit, I believe Mr. Ehalt will allow his personal issues to hinder me. I don't believe he is capable of carrying out the duties and concerns for the company and I'm afraid I would have to painfully look elsewhere for employment.
I need my job because I benefit a great deal. I want my job because it's my passion and I know I can help others understand how important Insurance is because of my own personal experience. I pray I do not be targeted for more grief and unfairness because I shared this with you, and I hope I don't have to prepare for the worst.
(Carswell Dep. Ex. 13.) Thus, the internal complaint raised four issues: 1) Ehalt's actions during her medical leave and upon her return; 2) Ehalt's refusal to acknowledge the Martin Luther King holiday; 3) Ehalt's response when she asked him to allow her to apply for insurance policies for herself and her children; and 4) Ehalt's "query" as to whether she had obtained her job by having a sexual relationship with Crimbly. At her deposition, however, Plaintiff testified that she did not list every single incident with Ehalt in her internal complaint, because she hoped that Monumental would speak to her as part of its investigation and she could get into further details, but this did not occur. (Carswell Dep. at 137, 140.)
On March 7, 2012, Gary Barnes sent Plaintiff a letter stating as follows:
We appreciate you bringing your concerns regarding Pittsburgh PA District Manager Ron Ehalt to the attention of Monumental Life's Field Human Resources. Please be advised that we have conducted an investigation into your concerns, and appropriate action has been taken based on the investigation.
(Carswell Dep. Ex. 14.) Plaintiff acknowledged receiving this letter, but testified that she was never told what "appropriate action" had been taken. (Carswell Dep. at 154-55.) Nor has Monumental indicated in this litigation what action it took. She also asserts that the only "witness" who was contacted was Ehalt. (ECF No. 45 ¶ 44.) Sandusky also testified that she was not contacted in the investigation even though she was a witness to Ehalt's actions regarding the Martin Luther King holiday incident. (Sandusky Dep. at 19, 35.)
Curiously, Plaintiff has submitted into evidence a letter, dated March 16, 2012, in which Regional Vice President Michael Knotts wrote to Ehalt addressing "concerns voiced to our HR department by almost all members of your office about your management style.'" (ECF No. 46-1 at 6-7.) Plaintiff notes that ...