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Grdinich v. Philadelphia Housing Authority

United States District Court, E.D. Pennsylvania

May 17, 2017

ROSANNA GRDINICH, Plaintiff,
v.
PHILADELPHIA HOUSING AUTHORITY, Defendant.

          MEMORANDUM.

          GERALD J. PAPPERT, J.

         Rosanna 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 that conversation.

         Grdinich, 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 motion.

         I.

         A.

         PHA 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.)

         Grdinich 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. (Id. 59:11-13.)

         Grdinich 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).

         Grdinich, 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 101:15-24.)

         In 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).

         During 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).

         When 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[1] 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.[2] (Id. at 16.)

         II.

         Summary 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).

         III.

         PHA 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 employment practice.'”).

         Grdinich 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.

         In her 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.

         Grdinich 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.

         IV.

         At 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).

         A.

         Grdinich 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 ...


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