United States District Court, W.D. Pennsylvania
Gibson, United States District Judge
before the Court is a motion for summary judgment (ECF No.
41) filed by Defendant Somerset County, with respect to the
claims asserted against it in the amended complaint filed by
Plaintiffs Janine Donaldson and Kimberly McKenzie (ECF No.
13). Plaintiffs are former employees of the Somerset County
jail. As it relates to the County, their amended complaint
alleges claims for hostile work environment and retaliation
under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et seq. (“Title
VII”) and the Pennsylvania Human Relations Act, 43 P.S.
§§ 951-963 (“PHRA”), and a claim under
42 U.S.C. § 1983 for a violation of their right to
bodily integrity. The motion has been fully briefed (ECF
Nos. 42, 46, 50) and is ripe for disposition. For the reasons
that follow, the motion will be granted in part and denied in
Jurisdiction and Venue
Court has jurisdiction over the Plaintiffs' claims
pursuant to 28 U.S.C. §§ 1331 and 1343. Venue is
proper under 28 U.S.C. § 1391(b).
began working as a part-time corrections officer
(“CO”) at the jail in 2009. (ECF No. 43
¶¶ 1, 4). She became full-time on May 15, 2010, and
the following January, she began working the 8:00 p.m. to
4:00 p.m. shift. (Id. ¶¶ 5, 7). The chief
CO during that shift was Ronald Lensbouer. (Id.
¶ 8). Before she became a full-time CO, Donaldson had
met Lensbouer in passing and had no problems with him.
(Id. 43 ¶ 10). But sometime after Donaldson
started working full-time (she does not specifically remember
when), Lensbouer began making inappropriate comments to her.
(Id. 43 ¶ 11). The comments were
“[u]sually regarding [her] boobs, ” and
eventually became “an everyday occurrence.”
(Donaldson Dep. at 68:11, 84:18-21, ECF No. 44-1; ECF No. 43
¶ 14). On one occasion, Lensbouer said something about
Donaldson's “ass and he said, don't worry, I
like fat asses; my wife's ass is fat.” (Donaldson
Dep. at 84:11-12, ECF No. 44-1).
first, Donaldson brushed off the comments. (ECF No. 43 ¶
13). Later, however, she started to tell Lensbouer
“that's enough.” (Id. ¶ 16). In
response, Lensbouer would laugh and say things like,
“Oh, we're friends. We're just friends.”
(Donaldson Dep. at 81:11-12, ECF No. 44-1). Donaldson could
not recall anyone else at the jail besides Lensbouer making
inappropriate comments to her. (ECF No. 43 ¶ 17).
in the middle of 2012, Lensbouer's conduct started to
become physical. (Id. ¶ 23). As Donaldson
I remember times that I would be - we had a book in the
control room that we had to fill out whenever an inmate
c[a]me in or left. I'd be over the filling it out and
he'd walk past me, behind me, between me and my desk and
his left hand would come - left or right, whatever way he was
would, would just come right across my backside.
Or if I was sitting at the control … If I would turn
around and be watching the cameras or the board, he'd
come and sit beside me. If somebody would call a door, we had
to push the button for the doors to be opened from the
control room. Well, he'd act like he was pushing one of
the doors and come up and take his right hand right across my
chest and try to press the doors.
(Donaldson Dep. at 90:19-24 - 91:1-11, ECF No. 44-1).
According to Donaldson, this type of conduct happened
“[a] lot, ” i.e., “[a] couple times a
week.” (Id. at 91:13, 91:18). “There was
never a day that I worked with him that something …
was not said or [done], ” she testified. (Donaldson
Dep. at 91:25 - 91:1-2, ECF No. 44-1).
most significant incident occurred in November 2012.
Donaldson was working in the control room when Lensbouer
approached her and “[b]acked [her] up against the
wall.” (Id. at 86:2). Then he “[t]ook
his right and put it down the back of [her] pants.”
(Id. at 86:2-3). Donaldson does not “remember
if [Lensbouer's hand] was under [her] underwear or over
it[, ]” but she does recall that his hand “was so
far down that it was past the anal part …”
(Id. at 86:9-13). After Lensbouer put his hands down
her pants, Donaldson pushed him away and left the room. (ECF
No. 43 ¶ 25).
this incident, Donaldson had not reported any of
Lensbouer's conduct to anyone at the jail or anyone
outside the jail, including her husband. (Id.
¶¶ 26, 29-31). Sometime in either late December or
early January, however, she told the jail's warden,
Gregory Briggs, about the incident in the control room.
(Id. ¶ 32). After Donaldson reported the
incident to Briggs, she had no further contact with
Lensbouer. (Id. ¶¶ 39-40). On April 4,
2013, she resigned from the jail, and returned to her former
job. (Id. ¶ 42).
testified that she sought medical treatment following
Lensbouer's harassment. (ECF No. 47 ¶ 340).
Specifically, she was referred to Victim's Services by
the Somerset Borough Police Department and attended
counseling sessions with Marlene Suto-Walters and Heather Hay
at Mary Berge & Associates between March and August 2014.
(Id. ¶¶ 351-53).
began working as a CO in 2001. (ECF No. 43 ¶ 47). In
2010, Lensbouer started making comments about McKenzie's
physique, saying things like “[s]how me your tits. Give
me a shot. Nice ass.” (Id. ¶ 54). As
McKenzie put it, the comments were “[c]onstantly about
the boobs” and occurred on a “nonstop”
basis - “three or four times one day, and twice the
next ….” (Id. ¶¶ 54, 60). In
the beginning, McKenzie never told Lensbouer to stop, but she
did say things like, “‘You're disgusting'
or ‘that's not funny.'” (McKenzie Dep. at
111:6-7, ECF No. 44-4). She considered the comments
offensive. (Id. at 111:18). However, she never
reported them to anyone. (ECF No. 43 ¶ 78).
early 2011, Lensbouer's behavior toward McKenzie turned
physical. (Id. ¶ 66). On an unspecified date in
2011, Lensbouer reached from behind McKenzie and felt her
breast. (Id. ¶ 67). Following this incident,
McKenzie did not say anything to Lensbouer; she just moved
away. (Id. ¶ 68). Nor did she report this
incident to anyone at the jail. (Id. ¶ 80). In
the ensuing months, Lensbouer touched McKenzie's breasts
or backside approximately once every two weeks or a couple of
times per month. (Id. ¶ 69). In May 2012,
Lensbouer told McKenzie “I love you, ” which
prompted her to tell him to stop. (McKenzie Dep. at 114:4-8,
ECF No. 44-4).
December 2012, Lensbouer stuck his hands “[v]ery, very
low” down the back of McKenzie's pants and
“pulled [her] underwear clear up” while the two
were alone in the control room. (Id. at 147: 13-14).
McKenzie kicked Lensbouer in the leg to get him to back away.
(ECF No. 43 ¶ 75). She did not immediately report this
incident, however. (Id. ¶ 83). On January 4,
2013, McKenzie was interviewed as part of the investigation
into Donaldson's allegations, and she informed Briggs and
Deputy Warden Adele Bauer about her problems with Lensbouer,
including the incident in the control room. (Id.
Donaldson, McKenzie was referred to Victim Services by the
Somerset Borough Police Department. From there, she was
referred to Mary Berge & Associates, where she received
counseling from August 2013 until March 2014. (ECF No. 47
¶ 344). Since the alleged harassment, she has
experienced anxiety, panic attacks, and depression and
started taking Xanax and Effexor. (Id. ¶¶
The County's Response
receiving the report from Donaldson, Briggs removed Lensbouer
from his duties as a chief CO and moved him to the second
floor of the jail to try to separate him from Donaldson and
McKenzie, who worked on the first floor. (ECF No. 43 ¶
136). Briggs then began an investigation, during which he
interviewed all of the jail's female staff members to
determine whether they had any similar experiences with
Lensbouer. (Id. ¶ 131). Aside from McKenzie, no
other female staff members came forward. Briggs also
interviewed Lensbouer, who “admitted that [he and
Donaldson] were horseplaying and [that] they did that all the
time.” (Bauer Dep. at 60:5-9, ECF No. 44-13). He also
admitted to giving “wedgies” to both Plaintiffs,
which he described as “a brother-sister [thing].”
(Briggs Dep. at 65:15, ECF No. 44-14).
January 11, 2013, Briggs removed Lensbouer from his chief
duties until March 4, 2013, and directed him to attend the
County's sexual harassment course. (ECF No. 43 ¶
140). According to the County, this was considered a
“last chance” for Lensbouer. (Id. ¶
141). Sometime thereafter, the Somerset Borough Police
Department began its own investigation of Lensbouer's
conduct. (ECF No. 43 ¶ 142; ECF No. 47 ¶ 337). At
that point, Lensbouer was moved to a different shift from
McKenzie. (Donaldson had already resigned). Eventually,
Lensbouer was charged with indecent assault and other crimes
stemming from the incidents with Plaintiffs. (ECF No. 47
¶ 338). Thereafter, he was placed on administrative
leave. (ECF No. 43 ¶ 143). He later resigned.
Alleged Harassment of Other Female Jail Employees
worked at the jail in 2010 and 2011 as a part-time CO. (ECF
No. 43 ¶ 162). During that time, Lensbouer made what
Rheel described as “snide” comments to her. (ECF
No. 43 ¶ 164). He would also stare at her breasts and
tell her that her nipples looked like “snuff
cans.” (ECF No. 47 ¶ 224). Rheel also overheard
Lensbouer make comments about other female employees'
breasts. Rheel testified that Lensbouer's comments made
her feel dirty, and she eventually quit working at the jail
because she felt uncomfortable. (ECF No. 47 ¶ 225-26).
However, she did not report Lendsouer's conduct. (ECF No.
43 ¶¶ 166, 168).
worked as a nurse at the jail from September 2006 until
August 12, 2012. (ECF No. 43 ¶ 171). On unspecified
dates during that time period, Lensbouer told McCartney that
she was beautiful and that he wanted to have a relationship
with her. (Id. ¶ 173). On one occasion, he
asked to see her breasts. (Id. 43 ¶ 174).
McCartney did not report this incident to anyone.
(Id. ¶ 175).
worked at the jail from October 2007 to March 2010, during
which time Lensbouer made comments about her breasts
“two or three times.” (ECF No. 47 ¶ 228). He
referred to Rogers' breasts as “knockers, ”
and commented about their size. (Id. ¶ 229).
Rogers also alleged that Lensbouer once pinched her buttocks
and would make sexually charged comments about other women on
a daily basis in her presence. (Id. ¶ 232).
Darryl Marker (née Maust)
worked part-time at the jail for two-and-a-half years, before
leaving in 2011. (ECF No. 43 ¶ 193). A few months into
her employment, Lensbouer began making comments about her
breasts and grabbing her breast and buttocks. (Id.
¶ 195). Marker testified that Lensbouer groped her
approximately six times per week. (Id. ¶ 197).
During one incident, he placed Marker's hand on his
crotch. (ECF No. 47 ¶ 239). Toward the end of
Marker's employment at the jail, Lensbouer allegedly
cornered her in the property room and asked her to remove her
shirt. (ECF No. 43 ¶ 198). She refused, so Lensbouer
grabbed her by the arm and pulled her back into the room,
attempting to forcibly remove her shirt. (Id.
¶¶ 199, 200).
next day, Marker told her then-fiancé, Scott Marker,
about the incident. (ECF No. 43 ¶ 201). Scott Marker
reported the incident to his brother, Jimmy Marker, who was a
County commissioner at the time. (Id. ¶ 202).
Jimmy Marker, in turn, reported the incident to the
jail's then-warden, Tom Perrin. (Id.). Soon
thereafter, a meeting was held between Darryl Marker; Vince
Pavic, who was in charge of human resources at the jail;
Bauer; and Perrin. (Id. ¶ 203).
investigation ensued, with Darryl Marker and Lensbouer both
submitting written statements to the warden. (ECF No. 47
¶ 250). In her statement, Darryl Marker described
Lensbouer's comments, the incident when he placed her
hand on his crotch, and the incident in the property room.
(Id. ¶ 251). During the investigation, Perrin
also spoke with Jessica Rogers, who described the comments
Lensbouer had made to her while she worked at the jail and
also prepared a written statement. (Id. ¶ 254).
Lensbouer was questioned, as well. (Id. ¶ 256).
He admitted that he made sexual remarks to Marker on ...