United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION ON PLAINTIFF'S AND
DEFENDANT'S CROSS-MOTIONS FOR SUMMARY JUDGMENT
Pupo Lenihan United States Magistrate Judge.
reasons set forth below, Defendant's August 11, 2016
Motion for Summary Judgment (ECF No. 50) will be granted as
to Plaintiffs claim of disparate impact in violation of Title
VII, and denied in its remainder. Plaintiffs August 9, 2016
Motion for Summary Judgment (ECF No. 45) will be denied.
case was filed by Complaint on April 12, 2015 (ECF No. 1),
and Amended on July 6, 2015 (ECF No. 11). Plaintiff, who
resigned from Defendant's employment with the filing of
her Complaint, alleged violations of Title VII of the Civil
Rights Act of 1964 ("Title VII") and the
Pennsylvania Human Relations Act ("PHRA"). More
specifically, Plaintiff filed claims for subjection to a
sexually hostile work environment, disparate impact, and
constructive discharge. The Motion to Dismiss filed by
Defendant County of Allegheny ("Defendant") on July
30, 2015 (ECF No. 15) was denied by this Court's Order of
September 9, 2015 (ECF No. 19). Following review of the
current record and pleadings, the Court finds that there are
questions of material fact that preclude summary judgment for
either party as to Plaintiffs hostile work environment and
constructive discharge claims, but not as to disparate
Factual and Procedural History
noted in this Court's Memorandum Opinion on
Defendant's Motion to Dismiss (ECF No. 18) ("Opinion
on Motion to Dismiss"), Plaintiff filed an Amended
Complaint (ECF No. 11) chronicling a more than two year
employment history allegedly "replete with disturbing
instances of (a) gender-based discrimination and retaliation,
(b) extensive personal attacks/vilification, and (c) at best
inept, indifferent and/or delinquent institutional response
and at worst institutional disregard for and further
violation of constitutionally-protected rights." ECF No.
18 at 2.
indicated that during her hiring, as the sole female
"laborer" (employees responsible for park cleaning
and maintenance) in Defendant's Public Works Department,
she was warned of likely sexually explicit and offensive
speech, but provided no guidance for reporting or redress of
sexual harassment. That is, "Defendant essentially
presented (a) Plaintiffs acceptance of employment as a
laborer in its Public Works Department as an assumption of
the risk of sexual harassment and (b) violation of the
protections of, e.g., Title VII, as an inherent
condition of employment." Opinion on Motion to Dismiss,
ECF No. 18, at 2 (citing Amended Complaint at 2-3).
Subsequent to discovery and in the pending Motions, the
parties acknowledge Plaintiffs receipt on employment of an
Employee Handbook (a) asserting Defendant's prohibition
of sexual discrimination, harassment, or retaliation and (b)
identifying by title those to whom violations should be
reported, including as a first-line, her
"supervisor". See, e.g., Defendant's
Memorandum in Support of Motion for Summary Judgment
("Defendant's Memo in Support"), ECF
No. 51, at 4-5. Defendant also asserts Plaintiff was shown an
instructive video dealing with sexual harrasment.
See Defendant's Reply Brief in Support of Motion
for Summary Judgment ("Defendant's Reply in
Support"), ECF No. 65, at 2.
further alleged she was subjected to sexually inappropriate
and offensive comments by male staff, particularly laborer
Tom Long ("Long"), who in March, 2013 slapped
Plaintiffs buttocks in the presence of co-workers, Country
tradesmen and Foreman Jim Kelly ("Kelly"). Her
objections triggered a "campaign of sexual harassment,
bullying, verbal abuse and retaliation" by Long and
other co-workers. Specific instances alleged included
vandalization of her property (such as tearing apart her
boots and filling them with dirt and bugs, spraying her
vehicle with phlegm/spit, blowing dirt/debris into her open
car windows), name-calling (such as referring to Plaintiff as
a "bitch") and "vicious, sexually-based,
unfounded rumors alleging intimate relations with
co-workers". Opinion on Motion to Dismiss, ECF No. 18,
at 3 (citing Amended Complaint). These allegations now have
evidentiary support and raise material fact questions.
See pleadings of record, deposition testimony cited
therein, and discussion, infra. See also, e.g.,
Plaintiffs Brief in Support of Motion for Summary Judgment
("Plaintiffs Brief in Support"), ECF No. 46, at 6
(noting that Long's slapping Plaintiff is disputed);
Defendant's Response in Opposition to Plaintiffs Motion
for Summary Judgment ("Defendant's Response in
Opposition"), ECF No. 62, at 4-6 (discussing testimony
and Kelly's self-contradicted statements); id.
at 7-8 (discussing questions of material fact as to other
incidents). Plaintiff further alleged that Foreman Kelly or
Plaintiffs North Park Supervisor, Gil Coda ("Coda")
observed and/or were made aware on an on-going basis of the
harassment, and Plaintiff stopped using common area
facilities. Plaintiff alleged that although Coda repeatedly
warned/verbally reprimanded Plaintiffs co-workers, and
reported the abuse to his supervisors, no action was taken by
Defendant. Subsequent to discovery and in the pending
Motions, the parties appear to concur that Coda reprimanded
Plaintiffs co-workers, and there are material fact questions
regarding his report of abuse to higher-level supervisors
and/or the adequacy or appropriateness of any action taken by
Defendant employer. See pleadings of record,
deposition testimony cited therein, and discussion,
infra; see, e.g., Plaintiffs Brief in Opposition to
Defendant's Motion for Summary Judgment ("Plaintiffs
Brief in Opposition", ECF No. 56, at 5-6
("Plaintiff did not know that Coda was not telling his
supervisors downtown all he knew of what she was
experiencing."); Plaintiff s Brief in Support, ECF No.
46, at 11 ("Coda either failed to report these
incidents, or he reported the incidents and no action was
taken."). Examples of continuing abuse included alleged
"plantings of a snake and a blood-soaked feminine pad
inside Plaintiffs work vehicle". See Opinion on
Motion to Dismiss, ECF No. 18, at 3. These allegations now
have evidentiary support and material fact questions.
See, e.g., Defendant's Response in Opposition,
ECF No. 62, at 12-14 (discussing fact questions). The present
record and pleadings also discuss other disputed material
facts, including anonymous complaints to Defendant about
Plaintiffs work, and Park Supervisor Coda's defense of
her work; someone's urinating in Plaintiffs work vehicle;
and Long's regularly referring to Plaintiff as
"bitch" or "Barbie" and making public
comments about her body. See, e.g., ECF No. 51 at
15-16; Plaintiffs Brief in Opposition, ECF No. 56, at 6-7;
Plaintiffs Brief in Support, ECF No. 46, at 3-4;
Defendant's Response in Opposition, ECF No. 62, at 14-16.
Plaintiff was contacted by Defendant's Department of
Human Resources ("DHS") in Summer, 2014, she
alleges that the details of her purportedly confidential
conversation were quickly widespread and the retaliatory
assaults (including obscene comments and rumors) intensified.
Plaintiff alleged Defendant interviewed a few employees
(including Long), took no remediatory or disciplinary action,
and closed the investigation in September, 2014. When she
declined proffered reassignment to another work site shortly
thereafter, the DHS employee blamed Plaintiffs harassment on
her physical appearance. A few days later, Plaintiff filed
her Charge of Discrimination with the Equal Employment
Opportunity Commission (the "EEOC" and "EEOC
Charge"), including a "continuing action" and
"ongoing" sexual harassment and hostile work
environment. See Opinion on Motion to Dismiss, ECF
No. 18, at 3-4.Again, these allegations have evidentiary
support and disputed material facts.
further alleged that: Defendant then held a "workplace
civility" training for North Park employees, and
required Plaintiff to recount instances of sexual harassment.
Plaintiff was re-assigned to the isolated skating rink in the
park with reduced work conditions/benefits. Her primary
victimizer, Long, was willingly reassigned to another
location with improved work privileges. Coda was subsequently
transferred from the North Park facility where he had worked
for decades. Plaintiff was transferred back to the North Park
facility in April, 2015 and continued to be subject to
worsening harassment under an unsympathetic new supervisor,
Rich Daniels ("Daniels"). In response to emotional
and physical distress, she requested unpaid leave under the
Family and Medical Leave Act (the "FMLA"). She
learned that Daniels promised others that she would be
subjected to continuing harassment if she returned.
Contemporaneous with her April 12, 2015 Complaint, she
tendered her resignation. See Opinion on Motion to
Dismiss, ECF No. 18, at 4-5 (citing Amended Complaint).
Again, subsequent to discovery, there are material fact
questions related to many of these allegations. See,
e.g., Plaintiffs Concise Statement of Material Facts,
("Plaintiffs CSMF"), ECF No. 47 (appearing to omit,
e.g., factual assertions supportive of events
alleged at the training session, an improvement in Long's
working conditions/privileges on transfer, or Daniels'
conduct during/after Plaintiffs FMLA absence). In the
subsequent pleadings, Plaintiff further alleges, and provides
evidentiary support for, communication with Defendant during
her FMLA leave advising that she did not want to resign but
would be forced to do so if the years-long adverse work
environment at North Park and the hostility and harassment of
her new supervisor and co-workers remained unremediated.
See Plaintiffs Brief in Opposition, ECF No. 56. at
Standard of Review
judgment may be granted if, drawing all inferences in favor
of the nonmoving party, "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 a judgment as a matter of law." Fed.R.Civ.P.
56(c); Anderson v. Liberty Lobby. Inc.. 477 U.S.
242. 252 (1986). See also Celotex Corp. v. Catrett.
477 U.S. 317. 325 (1986); Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986).
The moving party has the initial burden of identifying
evidence which demonstrates the absence of a genuine issue of
material fact. The party opposing the motion, however, cannot
rely merely upon bare assertions, conclusory allegations, or
suspicions to support the claim; rather, the non-movant
"must do more than simply show that there is some
metaphysical doubt as to the material facts, "
Matsushita, 475 U.S. at 586, and must produce more
than a "mere scintilla" of evidence to demonstrate
a genuine issue of material fact. See Big Apple BMW, Inc.
v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d
Cir.1992). See also Celotex, 477 U.S. at 324
(observing that Rule 56(e) permits a summary judgment motion
to be opposed by any of the kinds of evidentiary materials
listed in Rule 56(c), except the mere pleadings themselves).
inquiry to be made is "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." The non-moving party "must be able
to produce evidence that 'when considered in light of
that party's burden of proof at trial, could be the basis
for a jury finding in that party's favor.'"
SEC v. Hughes Capital Corp., 124 F.3d 449, 452 (3d
Cir.1997) (quoting Kline v. First W. Gov't Sec,
24 F.3d 480, 484 (3d Cir. 1994)). If the non-moving party
fails to present evidence sufficient to establish an
"element essential to that party's case, and on
which that party will bear the burden of proof at
trial", summary judgment is appropriate.
Celotex, 477 U.S. at 322. Where there is no material
fact in dispute, the moving party need only establish that it
is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c)(2). Where the non-moving party
has presented a genuine issue of a material fact,
i.e., one whose resolution may affect the outcome of
the case by a reasonable jury under applicable law, summary
judgment is precluded. Anderson, 477 U.S. at 247-49.
Hostile Work Environment
Defendant observes, to establish a claim under Title VII and
the PHRA for gender-based employment discrimination due to an
intimidating or offensive work environment, a plaintiff must
show: (1) she suffered intentional discrimination because of
her gender, which (2) was pervasive and regular; (3)
detrimentally affected her, and (4) would detrimentally
affect a reasonable person of her gender in that position.
See Defendant's Memo in Support, ECF No. 51, at
3 (citing Tucker v. Merck & Co., 131 Fed.Appx.
852, 858 (3d Cir. 2005); West v. Philadelphia Elec.
Co., 45 F.3d 744, 753 (3rd Cir. 1995)). Plaintiff must
also show the existence of respondeat superior
liability. See, e.g., Mandel v. M & Q Packaging
Corp., 706 F.3d 157, 167 (3d Cir. 2013). Defendant also
correctly observes that when the harasser is the victim's
"co-worker or other non-supervisor . . . employer
liability attaches 'only if the employer failed to
provide a reasonable avenue for complaint, or,
alternatively, if the employer knew or should have known
of the harassment and failed to take prompt and appropriate
Reasonable Avenue of Complaint
first asserts that Plaintiffs hostile work environment claim
"fails as a matter of law because Defendant provided a
reasonable avenue of complaint for . . . sexual harassment
allegations" via the Allegheny County Employee Handbook
which Plaintiff received on January 7, 2013 and failed to
follow. ECF No. 51 at 3-5. Defendant recounts the
provisions of the form Acknowledgment and
Handbook but fails to provide any authority for its
assertion that the general Handbook language in and of itself
provided Plaintiff a sufficient "reasonable avenue of
Plaintiffs alleged failure to follow these policies,
Defendant proffers no authority for an assertion that
exhaustion of its Handbook remedies was a prerequisite to
this action. Cf. Opinion on Motion to Dismiss, ECF
No. 18. To the contrary, Plaintiff filed her complaint with
the EEOC and received her Notice of Right to Sue.
See n. 1, supra. To the extent Defendant
intends another variation on an assertion that Plaintiff is
summarily unentitled to relief because she did not personally
pursue her complaints of ongoing abuse "up the
ladder", the Court rejects any such
assertion. Cf. Plaintiffs Reply to
Defendant's Response in Opposition (Plaintiffs
Reply"), ECF No. 66, at 8 ("Defendants tell their
employees to report harassment to their supervisors, but then
disclaim any responsibility for those supervisors'
knowledge."). Moreover, if the question were pertinent,
which this Court finds it is not - the record provides
support for a reasonable finding in Plaintiffs favor. The
Court observes the evidence (including recitations in
Defendant's own briefing) that Plaintiff repeatedly
reported sexual harassment and/or retaliation to her direct
supervisor, North Park Supervisor Coda, who held a designated
first-line reporting position, and whom she reasonably
perceived to be providing prompt and supportive response in
taking actions within his limited authority (admonishing
perpetrator Long when he was specifically identified; and
admonishing Plaintiffs other, exclusively male, co-workers
when individual responsibility could not be identified owing
to the alleged discriminatory culture). Had Plaintiff been
obligated to follow the Handbook procedure to preserve her
civil rights protections from sexual harassment (an assertion
rejected by this Court, and one which marks a striking
deviation from the jurisprudential framing of this question
as one of the employer's provision of a reasonable
avenue of complaint), there is reasonable evidence that
Plaintiff (a) received a "satisfactory"
(e.g., best good faith) response from her direct
supervisor although an ongoing/ultimately unsatisfactory
response from Defendant, and (b) reasonably believed
continued reporting and representation on her behalf by
Supervisor Coda the most likely avenue to actual redress by
Defendant - particularly given the alleged hiring
presentation of Defendant's attitudes toward sexual
harassment and Title VII, and the alleged culture to which
she was subjected. The supported allegations of a
misogynistic work environment would also reasonably support
(a) belief that the situation was more likely to be remedied
- if at all - by a supportive supervisory male than the
female laborer subject to a protracted campaign of abuse and
intimidation, and (b) continued entrustment of representation
by said supervisor.
bottom, summary judgment on Plaintiffs hostile work
environment claim is precluded by material fact questions as
to Defendant's provision of a reasonable avenue of
Prompt and Appropriate Remedial Action
judgment on this claim is also precluded by the parties'
failure to remove any material fact questions as to
Defendant's assertions that (a) it neither knew nor
should have known that Plaintiff was being subjected to
working conditions in violation of Title VII prior to June,
2014 because she did not report verbal and physical abuses to
supervisors higher than North Park Supervisor Coda prior to
that time, and (b) it took prompt and appropriate remedial
action against Title VII violations of which it was or should
have been aware. See ECF No. 51 at 4-5; see
also recounting of Defendant's specifically alleged
and (disputedly) evidenced course of action, supra.
Violations Occurring ...