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Bogaski v. County of Allegheny

United States District Court, W.D. Pennsylvania

March 22, 2017

JUSTINA BOGASKI, Plaintiff,
v.
COUNTY OF ALLEGHENY, PENNSYLVANIA, Defendant.

          MEMORANDUM OPINION ON PLAINTIFF'S AND DEFENDANT'S CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Lisa Pupo Lenihan United States Magistrate Judge.

         I. Summation

         For the 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.

         This 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 impact.

         II. Factual and Procedural History

         As 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.

         Plaintiff 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.

         Plaintiff 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.

         Although 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.[1]Again, these allegations have evidentiary support and disputed material facts.

         Plaintiff 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 10-11.

         III. Standard of Review

         Summary 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).

         The 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.

         IV. Analysis

         A. Hostile Work Environment

         As 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)).[2] 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 remedial action.'"[3]

         1. Reasonable Avenue of Complaint

         Defendant 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[4] 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 complaint".[5]

         As to 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.[6] 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.[7] 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.

         At 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 complaint.

         2. Prompt and Appropriate Remedial Action

         Summary 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.

         (a) Violations Occurring ...


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