United States District Court, M.D. Pennsylvania
CHRISTOPHER C. CONNER, Chief District Judge.
AND NOW, this 11th day of May, 2015, upon consideration of the report (Doc. 57) of Magistrate Judge Susan E. Schwab, recommending the court grant in part and deny in part defendants' collective motion (Doc. 36) for summary judgment, wherein the magistrate judge opines that plaintiff Robin Anderson ("Anderson") fails to demonstrate a genuine issue of material fact with respect to the bulk of her claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. §§ 955(a), et seq., to include her claims for disparate treatment discrimination (Counts I, II), hostile work environment (Counts I, II), and retaliation based on a December 2010 annual employee performance review (Counts III, IV), but further recommends Anderson's Title VII and PHRA claims for retaliation based on performance reviews in April 2011 and April 2012 survive summary judgment,  and that Anderson's PHRA aiding and abetting claim against defendants Janice Brzana and the Pennsylvania State Police be permitted to proceed, based on the partial survival of Anderson's retaliation claims, and the court noting that defendants have objected (Doc. 58) in part to the report, contending that the magistrate judge erred: first, in allowing the PHRA aiding and abetting claim to survive summary judgment given Anderson's failure to oppose defendants' motion as to that claim; second, in construing Anderson's amended complaint as stating a claim for retaliation based upon employment reviews in April of 2011 and April of 2012, and allowing Anderson to proceed on said claims given defendants' failure to raise same in their Rule 56 motion; and third, by considering and refusing to strike Anderson's separate and non-responsive statement of facts in reviewing the instant motion, (see Doc. 58 ¶¶ 2, 4-8, 9), and, having examined the parties' underlying briefs, the magistrate judge's report, and defendants' objections, the court being in agreement with defendants that Anderson abandoned her claim for aiding and abetting retaliation by failing to respond to defendants' arguments for summary judgment as to that claim, see Smith v. Lucas, No. 4:05-CV-1747, 2007 WL 1575231, at *9 n.11 (M.D. Pa. May 31, 2007) (holding that plaintiff abandoned her claims by failing to support them in response to a motion for summary judgment); Clarity Software, LLC v. Allianz Life ins. Co. of N. Am., No. 2:04-CV-1441, 2006 WL 2346292, at *5 (W.D. Pa. Aug. 11, 2006) (same); Cacciatore v. Cnty. of Bergen, No. Civ. A. 02-1404, 2005 WL 3588489, at *1 n.1 (D.N.J. Dec. 30, 2005) (same),  and the court otherwise holding that Judge Schwab did not err in liberally construing Anderson's complaint to include retaliation claims pertaining to April 2011 and April 2012 performance reviews, or considering Anderson's separate and non-responsive statement of facts in summarizing the record, but the court also recognizing that defendants did not have an opportunity to fully advocate their position with respect to Anderson's retaliation claims as construed by the magistrate judge, and thus concluding that justice compels the court to permit additional Rule 56 filings limited to those claims, it is hereby ORDERED that:
1. The report (Doc. 57) of Magistrate Judge Schwab is ADOPTED to the extent that the report:
a. Recommends the court grant defendants' motion (Doc. 36) for summary judgment as to Anderson's claims for disparate treatment discrimination, hostile work environment, and retaliation based on her December 2010 employee performance review;
b. Recommends that Anderson's separate and non-responsive statement of facts be considered in determining the existence of genuine disputes of material fact; and
c. Finds that defendants' motion (Doc. 36) neither contemplates nor addresses retaliation claims based on Anderson's April 2011 and April 2012 employee performance reviews as those claims are construed by the magistrate judge.
2. The court declines to adopt the report to the extent it recommends denial of defendants' motion (Doc. 36) as to Anderson's PHRA claim for aiding and abetting retaliation.
3. Defendants' motion (Doc. 36) for summary judgment is GRANTED and judgment will be entered in favor of defendants and against Anderson with respect to the following claims:
a. Counts I and II for disparate treatment discrimination and hostile work environment, in violation of Title VII and the PHRA;
b. Counts III and IV for retaliation based on Anderson's December 2010 employee performance review, in violation of Title VII and the PHRA; and
c. Count V for aiding and abetting retaliation, in violation of the PHRA.
4. Entry of judgment pursuant to Paragraph 3 is DEFERRED.
5. Defendants are GRANTED leave to file a renewed Rule 56 motion with respect to Anderson's claims for retaliation based on her April 2011 and April 2012 employee performance reviews as construed by the magistrate judge. Any such motion shall be filed within fourteen (14) days of the date of this order.
6. This matter is REMANDED to Magistrate Judge Susan E. Schwab for further pretrial management, including resolution of any ...