United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Grdinich was the Equal Employment Opportunity Officer for the
Philadelphia Housing Authority (“PHA”) for nearly
a decade. In 2008, she was transferred from that position
after she told PHA's executive director that she had
received anonymous calls about him allegedly sexually
harassing a female employee. Grdinich contends that for
roughly three years thereafter she was repeatedly
transferred, harassed and retaliated against as a result of
who still works for PHA, sued the entity for sex
discrimination, race discrimination, retaliation and hostile
work environment under Title VII of the Civil Rights Act of
1964 and discrimination, retaliation and hostile work
environment in violation of the Pennsylvania Human Relations
Act (“PHRA”). PHA moves for summary judgment,
asserting that Grdinich failed to administratively exhaust
her sex-discrimination and hostile work environment claims
and that the remaining claims fail under the McDonnell
Douglas standard. After a thorough review of the record
and the parties' filings, the Court grants PHA's
hired Grdinich as its EEO Officer in 1999. (Grdinich Dep., at
30:17-18, ECF No. 35-1.) Grdinich was responsible for
fielding and investigating discrimination complaints from PHA
employees. (Am. Compl. ¶ 12.) In the late summer or
early fall of 2008, Grdinich spoke to PHA Executive Director
Carl Greene. As he usually did, Greene asked her what types
of complaints she was handling. (Grdinich Dep., at 54:1- 5.)
Grdinich told him she had recently received three anonymous
phone calls reporting that Greene had harassed one of
PHA's female employees. (Id. at 54:6-9.) When
Greene heard this, he walked away. (Id. at 55:8-9.)
Grdinich never opened an investigation into those anonymous
calls because she later learned the woman they concerned no
longer worked for PHA. (Id. at 55:12-18.)
remained the EEO Officer until December 17, 2008, when she
was transferred to the PHA police department, where her job
duties changed substantially. (Id., at 59:2-12; Am.
Compl. ¶ 14.) PHA never explained the transfer; her
supervisor at the time, Fred Pasour, told her that her salary
would not be affected and that PHA “need[ed] [her]
expertise in the police department.” (Grdinich Dep., at
59: 8-10.) Pasour then took on the responsibilities of
conducting equal employment opportunity investigations,
though the EEO Officer position remained unfilled.
contends that this transfer was the beginning of a pattern of
retaliation for telling Greene about the anonymous calls
earlier that year. At the police department, Grdinich worked
under Chief of Police Richard Zappile, who she had previously
investigated and interviewed in her capacity as EEO Officer.
See (Grdinich Dep., at 45:23-46:5). Grdinich felt
that being assigned to work for Zappile was retaliatory, as
she believed he would wish to retaliate against her.
See (Compl. ¶ 17- 18); cf. (Grdinich Dep., at
45:23-46:5). In 2009, PHA cut Grdinich's salary by
approximately $20, 000. See (Hr'g Tr., at 7:17);
(Def.'s Mem., at Ex. C, ECF No. 32-6). Her salary was
never restored to the amount it was when she was EEO Officer.
See generally (Def.'s Mem., at Ex. C, ECF No.
32-6). Grdinich was shifted between different departments on
multiple occasions between 2009 and 2013, often to positions
below her level of training and expertise. See
(Grdinich Dep., at 107:16-19). She contends she was placed in
these roles with little to no training, (id. at
2:22-24), and was given a needlessly isolated workspace for
one of the positions in a further act of retaliation,
(id. at 71:19-21).
who is white, claims that the PHA discriminated against her
because of her race. After she was transferred to PHA's
admissions department, a “black female
supervisor” berated her and accused her of receiving a
ticket for running a red light while driving a PHA vehicle.
(Id. at 93:13-24.) Shortly after that, a supervisor
reviewed Grdinich's time sheets and asked her why she was
late when she arrived at 8:02 a.m. instead of 8:00 a.m.
(Id. at 94:1-10.) That supervisor also required
Grdinich to work the front desk of the admissions department
on Mondays, when the department was busiest. (Id. at
2011, PHA reestablished the EEO Officer position as part of a
2010 settlement with the Pennsylvania Human Relations
Commission (“PHRC”) in an unrelated matter. Under
the settlement agreement's terms, PHRC had to approve of
PHA's hire for the new position. (Hr'g Tr., at
17:7-19, ECF No. 17:12-19); see also (Def.'s
Mem., at Ex. G, ECF No. 32-10). After nearly three years, PHA
began searching for a new EEO Officer to fill the position
left vacant after Grdinich's transfer in May 2008.
See (Def.'s Mem., at Ex. E, ECF No. 38-8). Those
seeking the position were required to have a bachelor's
degree. Grdinich applied for the position even though she
lacked a degree. See (id. at Ex. H, ECF No.
32-11); (Grdinich Dep., at 119:4-15).
its search, PHA appointed Stacey Thomas to be interim EEO
Officer. (Def.'s Mem., at Ex. F, ECF No. 32-9.)
Thomas, who is African-American, also lacked a bachelor's
degree but had eleven years' experience serving as a
labor and employment specialist with PHA. (Id. at
Ex. I, ECF No. 32-12.) An outside firm hired by PHA
interviewed eighteen candidates- including Grdinich-before
ultimately hiring Tracey Reid, who is African-American.
See (Grdinich Dep., at 121:8-9). Reid held a
bachelor's degree from Mansfield University and met the
other requirements of the job posting. See
(Def.'s Mem., at Ex. E); (id. at Ex. L, ECF No.
32-15). She had also worked for nearly eight years at the
PHRC as a Human Relations Representative. See
(id. at Ex. L, ECF No. 32-15).
Grdinich did not get the job, she filed an administrative
charge with the PHRC and the Equal Employment Opportunity
Commission (“EEOC”) on November 23, 2011 (the
“2011 charge”), alleging retaliation and race
discrimination. See (id. at Ex. J, ECF No.
32-13). She filed another administrative charge on February
29, 2012 (the “2012 charge”) claiming that she
was harassed in retaliation for filing the 2011 charge.
See (id. at Ex. M, ECF No. 32-16). The EEOC
issued Grdinich a right to sue letter for the 2011 and 2012
charges on March 18, 2016. See (Compl., at Ex. A).
Grdinich's Amended Complaint consists of two counts.
Count I alleges sex discrimination, race discrimination,
retaliation and a hostile work environment, all in violation
of Title VII. (Am. Compl., at 15.) Count II alleges
violations of the PHRA based on the same
conduct. (Id. at 16.)
judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to
the non-moving party, the moving party is entitled to
judgment as a matter of law. Smathers v. Multi-Tool,
Inc./Multi-Plastics, Inc. Emp. Health & Welfare
Plan, 298 F.3d 191, 194 (3d Cir. 2002); see
also Fed. R. Civ. P. 56(c). A genuine issue of material
fact exists when “a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A mere
scintilla of evidence in support of the non-moving party will
not suffice; there must be evidence by which a jury could
reasonably find for the non-moving party. Id. at
252. Summary judgment is appropriate where “the
nonmoving party has failed to make a sufficient showing on an
essential element of her case with respect to which she has
the burden of proof.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In reviewing the
record, a court “must view the facts in the light most
favorable to the nonmoving party and draw all inferences in
that party's favor.” Prowel v. Wise Bus.
Forms, 579 F.3d 285, 286 (3d Cir. 2009). The court may
not, however, make credibility determinations or weigh the
evidence in considering motions for summary judgment. See
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150
(2000); see also Goodman v. Pa. Tpk. Comm'n, 293
F.3d 655, 665 (3d Cir. 2002).
first argues that Grdinich failed to administratively exhaust
any of the claims in the Amended Complaint relating to sexual
harassment or a hostile work environment. See
(Def.'s Mem., at 4-7). Before bringing a Title VII claim
in Pennsylvania, a plaintiff must first file an
administrative charge with the EEOC within 300 days of the
alleged discrimination, 42 U.S.C. § 2000e-5(e)(1), or
with the PHRA within 180 days of the same. 43 P.S. §
959(a). These deadlines are strictly construed under each
statute. Pourkay v. City of Philadelphia, No.
06-5539, 2009 WL 1795814, at *4 (E.D. Pa. June 23, 2009)
(citing Woodson v. Scott Paper Co., 109 F.3d 913,
925 (3d Cir. 1997)). Plaintiffs generally must file a new
EEOC or PHRC charge for each discrete act of discrimination.
See Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, at 114-15 (2002) (“Each incident of
discrimination and each retaliatory adverse employment
decision constitutes a separate actionable ‘unlawful
filed two separate PHRC charges and cross-filed each with the
EEOC. (ECF Nos. 32-13 & 32-16.) The 2011 charge contained
two counts, each based on PHA's failure to promote
Grdinich in May of 2011. (ECF No. 32-13.) The first count
attributes that decision to retaliation; the second count to
racial discrimination. (Id. at 2-3.) The 2012 charge
comprises three counts: one alleging retaliation based on
Grdinich's filing of the 2011 charge and two that repeat
the counts in the 2011 charge. (Id. at 2-3); see
also (Hr'g Tr., at 43:15-24). Spread across the two
PHRC charges, these five counts- four of which center on
PHA's failure to promote Grdinich in May 2011-represent
the whole of Grdinich's administratively exhausted EEOC
and PHRA claims. Three counts speak of retaliation and two
speak of racial discrimination. None raise claims of sex
discrimination or a hostile work environment. See
(ECF Nos. 32-13 & 32-16). Grdinich therefore cannot
maintain a Title VII or PHRA claim against PHA for sex
discrimination or a hostile work environment because she has
not administratively exhausted those claims.
response to PHA's motion, Grdinich did not even
acknowledge, much less respond to, PHA's administrative
exhaustion argument. See generally (Pl.'s Mem.,
ECF No. 34). At oral argument, Grdinich's counsel
asserted that in the ensuing correspondence between Grdinich
and the PHRC regarding these charges, Grdinich informed the
PHRC of sex-based discrimination. There is no evidence in the
record to support this belated assertion. While the breadth
of Grdinich's lawsuit “is not defined by the
allegations in the EEOC charge, but rather by the scope of
the EEOC investigation which can reasonably be expected to
grow out of that charge, ” Scott v. Univ. of
Del., 385 F.Supp. 937, 942 (D. Del. 1974) (quotations
omitted), her administrative charges alleging discrimination
based on race cannot, on the facts alleged in those charges,
reasonably be expected to morph into sex discrimination
claims. See Revis v. Slocomb Indus., Inc., 814
F.Supp. 1209, 1219 (D. Del. 1993). “A plaintiff will
not be deemed to have made a claim with the EEOC if [she]
provide[s] no facts that suggest such a claim.”
Spencer v. Comcast Corp., No. 16-2589, 2017 WL
660854, at *3 (E.D. Pa. Feb. 17, 2017) (internal quotations
omitted). This “prevent[s] a plaintiff from
‘greatly expand[ing] an investigation simply by
alleging new and different facts when [s]he [is] contacted by
the Commission following [her] charge, '”
Barzanty v. Verizon PA, Inc., 361 F. App'x 411,
414 (3d Cir. 2010) (quoting Hicks v. ABT Assoc.,
Inc., 572 F.2d 960, 966 (3d Cir. 1978)), or when faced
with an uphill battle at summary judgment. PHA's motion
is therefore granted with respect to Grdinich's sex
discrimination and hostile work environment claims.
has three administratively exhausted claims; her retaliation
and race discrimination claims based on PHA's 2011
failure to promote her to EEO Officer and her claim that PHA
retaliated against her for filing the 2011 charge. The Court
considers each in turn.
summary judgment, employment discrimination cases are
evaluated under the framework established in McDonnell
Douglas v. Green, 411 U.S. 792 (1973). Under
McDonnell Douglas, Grdinich must first establish a
prima facie case of discrimination or retaliation.
If she does, PHA must articulate a legitimate
nondiscriminatory reason for its action. If PHA does so, the
burden shifts back to Grdinich to establish by a
preponderance of the evidence that PHA's stated reason is
pretextual. See Jones v. Se. Pa. Transp. Auth., 796
F.3d 323, 326 (3d Cir. 2015); Daniels v. School Dist. of
Phila., 776 F.3d 181, 193 (3d Cir. 2015).
alleges that in April of 2011, she applied for the newly open
EEO Officer position but did not get the job, which she
contends went to a less-qualified candidate. (Grdinich Dep.,
at 57:19-58:2.) Grdinich believes the decision not to promote
her was retaliation for her conversation with Greene nearly
three years earlier. PHA contends that Grdinich fails to make
out a prima facie case of retaliation. In the
alternative, it argues that it has offered a ...