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Sawa v. RDG-GCS Joint Ventures III

United States District Court, E.D. Pennsylvania

July 14, 2017

GEMMA SAWA, et al.


          BAYLSON, J.

         I. Introduction

         In this employment discrimination and retaliation action, Defendants RDG-CGS Joint Ventures III ("RDG") and Walter Paul Kelley ("Kelley, " and collectively, "Defendants") move for summary judgment on Plaintiffs Gemma Sawa ("Gemma") and Jacqueline Sawa's ("Jacqueline, " and collectively, "Plaintiffs") sexual harassment and retaliation claims, alleging:

(1) Sexual Harassment of both Plaintiffs, in violation of Title VII of the Civil Rights Act of 1964, § 703, 42 U.S.C.A. § 2000e-2 ("Title VII");
(2) Retaliation against both Plaintiffs, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA");
(3) Retaliation against both Plaintiffs, in violation of the Family and Medical Leave Act, 29 U.S.C. § 2611, et seq., ("FMLA"); and
(4) Retaliation against both Plaintiffs, in violation of the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq., ("PHRA"); and
(5) "wrongful termination" of Jacqueline only, in "violation of Pennsylvania public policy.

(ECF 1, Complaint, "Compl." ¶¶ 50-71). Plaintiffs, who are sisters, were employees of RDG before they were each terminated for allegedly egregiously violating RDG's computer use policy by spending a significant portion of on-the-clock time completing coursework at the URL ", " an online educational platform for attaining collegiate and post-collegiate degrees. Plaintiffs contend that Defendants subjected them to a hostile work environment and sexual harassment, and that their termination was either in retaliation for complaining about the sexual harassment, or, alternatively, in retaliation for their use of authorized medical leave time. Defendants seek summary judgment on the ground that Plaintiffs have failed to make out a prima facie case for any of their claims, and that even assuming, arguendo, they had established prima facie evidence of their claims, they have failed to show that Defendants' proffered reasons for Plaintiffs' terminations are pretextual.

         For the reasons discussed below, Defendants' motion will be GRANTED in its entirety.

         II. Factual Background

         The following is a fair account of the factual assertions at issue in this case, as taken from, inter alia, RDG's Statement of Undisputed Facts, and not genuinely disputed by Plaintiff. (See ECF 47-1, "DSOF"; ECF 49-3, Plaintiffs' Response to Defendants' Statement of Undisputed Material Facts, "Pls.' Resp. DSOF").

         A. General Facts of Plaintiffs' Employment

         RDG is under contract to the U.S. Department of Homeland Security ("DHS"), Federal Protective Service ("FPS"), and manages and operates DHS's emergency management and emergency communications program charged with maintaining a safe and secure environment for federal employees, contractors and visitors at federal facilities. (Defs.' Mot., Ex. 3, Declaration of Sheila McCombs, "McCombs Decl., " ¶ 5; DSOF ¶ 3). RDG's operations include dispatch and alarm monitoring, radio and telephone communications, information technology services, coordination and support of law enforcement, fire and other emergencies, and emergency response and medical communications. (DSOF ¶ 6).

         RDG operates on a nationwide basis, twenty-four hours per day, seven days per week, at four sites known as MegaCenters, one of which is located in Philadelphia, Pennsylvania. (Id. ¶¶ 6-7). In March 2013, the Philadelphia MegaCenter ("PMC") was awarded a new federal government contract, RDG, and both Plaintiffs thereafter became RDG employees. (Id. ¶¶ 9-10).

         Each Plaintiffs title at RDG was, for a time, "Alarm Monitor/Telecommunicator (Dispatcher), " which involved "protecting] federal facilities, from any crime that was committed, on behalf of the government dispatching services where required, and coordinating emergency services and communications." (Id. ¶¶ 11-13). Their responsibilities included "coordination of inter-agency communications in cases where FPS is tasked with working with state and local emergency service agencies." (Id. ¶¶ 12).

         During the course of her employment, Jacqueline was promoted to "Telecommunications (Dispatch) Supervisor, " which involved "supervising] 7-8 employees who were taking emergency response calls, monitoring alarms and dispatching and acting as lead to the other employees." (Id. ¶¶ 15-16).

         Incident to their employment at RDG, Plaintiffs received copies of RDG's employee handbook, which details, inter alia, its computer use, anti-discrimination, anti-harassment, and anti-retaliation policies, as well as the DHS handbook, which also details a computer use policy. (Id. ¶¶ 17-18). Both Gemma and Jacqueline read these policies and understood that, pursuant to them, only limited personal use of RDG computers was permitted. (Id. ¶ 18-20, ¶ 90; see Defs.' Mot., Ex. 10, DHS Handbook, at 36 ("I understand that I can only use Government systems for official Internet activities and email, with limited personal use allowed.") (emphasis added)).

         The record reflects that when RDG employees had "down time"-i.e., they were not answering the phones or responding to alarms-they were permitted to, and did, engage in activities such as reading books and magazines, playing computer games, and watching TV. (See ECF 49-4, Plaintiffs' Statement of Facts of Record, "PSOF, " ¶ 57). As far as internet use was concerned, RDG also tolerated employees' use of the internet to "check[] a score on ESPN" or "look up online menus to order foods, stuff of that nature." (Defs.' Reply, Ex. 1, Deposition of Walter Paul Kelley, "Kelley Dep., " at 38-39).

         The undisputed record evidence shows that taking online courses (and completing tests, assignments, and quizzes associated with that course), however, exceeded the permissible "limited" use of the internet at RDG. (DSOF ¶ 90; Pls.' Resp. DSOF¶ 90) (admitting that "taking online courses and completing coursework during work hours, on RDG computers, might be a violation of the write policy, " yet maintain that "the rule was not enforced."). This is because completing coursework is, by nature, more distracting than the other types of "down time" activities. (Id.). Specifically,

"when you're taking tests .... it's set to time-out after a certain amount of time. So if you just don't answer questions, you just get marked wrong on those questions and the test will end. So you have to pay attention to the test when you're doing it. And if the phone's ringing and you're trying to pay attention to a test, then usually you might miss the time period and pay more attention to the program. If you're reading a book and the phone rings, you put it down and start up again. That's the difference."

(PSOF ¶¶ 58-60; Kelley Dep. at 50, 52). There is no evidence in the record that suggests that online course website that Plaintiffs used in this case-did not have this type of "time-out" functionality.

         B. FMLA Leave

         During the course of their employment, both Plaintiffs applied for and took FMLA leave on several occasions. (DSOF ¶ 21). Gemma first applied for intermittent FMLA leave in October 2012 due to a serious illness, which was granted. (Id. ¶ 22) Gemma's FMLA leave was recertified twice during the course of her employment-on October 29, 2013, and again on February 28, 2014-and she was never denied any leave she requested. (DSOF ¶¶ 21-27). The last day on which Gemma exercised her FMLA leave was May 28, 2014, due to dizziness caused by "a flare-up of Hashimoto's-a disability."[1] (DSOF ¶¶ 26; PSOF ¶ 26).

         Jacqueline also applied for, and was granted, intermittent FMLA leave, in her case in order to care for her mother. (DSOF ¶ 28). Jacqueline, like Gemma, was never denied any leave she requested. The last days on which Jacqueline exercised her FMLA leave were July 19 and 20, 2014.[2](DSOF¶30).

         C. Cyber-Stalking Complaints and Initial Investigation

         i. 2013 Cyber-Stalking Activity

         The record evidence, summarized below, provides a detailed account of the highly-unusual cyber-stalking situation that began to unfold at RDG in 2013.

         In early 2013, Michael Berardis, an RDG employee with the title of Shift Supervisor ("Berardis"), started receiving unwanted anonymous emails and texts, some of which were sexual in nature. Over the next few months, the texts increased and the sender of the texts would show Berardis that he or she was able to access his online bank and tax accounts and find his passwords. (DSOF ¶ 33).

         In May 2013, Plaintiffs and another RDG employee named Jennifer Jackson also started receiving anonymous, graphic messages to their personal electronic devices, including sexual comments and comments relating to their workplace and people that they knew. (DSOF ¶ 34).

         In July 2013, Jackson, on behalf of herself, Berardis, and Plaintiffs made a "collective report" to Sheila McCombs, the Director of Contract Administration and Human Resources ("McCombs"), and to Walter Paul Kelley, the Contract Manager at the PMC, who also served as Plaintiffs' supervisor ("Kelley"). (DSOF ¶ 35). McCombs advised that she would conduct an investigation. (Id.).

         Gemma expressed concern that her complaints about the cyber-stalking situation were being discounted by RDG because, in response to complaints to Kelley made in the Spring of 2013, Kelley called Plaintiffs, Jackson, and Berardis "babies, " and Jackson told Gemma that Kelley was "getting pretty mad" about their complaints and "didn't want to hear about it anymore at work." (DSOF ¶ 70; Defs.' Mot., Ex. 4, Deposition of Gemma Sawa, "Gemma Dep., " at 109-110).

         At some point, Colonel John F. McClay ("McClay")-who was not an employee of RDG-was informed by RDG about the cyber-stalking situation because of his role as Law Enforcement Program Manager for the DHS at the PMC. On July 15, 2013, McClay sent an email to all PMC staff, explaining that several employees were receiving harassing messages, and that based on the type of information being released it is apparent that there is an internal source feeding information to this individual/s." (DSOF ¶ 36; Defs.'Mot., Ex. 17). He explained that he had "deferred the matter to the [FPS] Criminal Investigation Branch and to the Additionally, McClay and Trooper Sembler were minor targets of the cyber-stalking. (DSOF ¶¶ 53-55) ICE Forensic Unit to investigate, " and invited any employees to contact either him or Kelley with any information regarding the cyber-stalking situation. (DSOF ¶¶ 37-38).

         On July 16, 2013, McClay forwarded emails that Berardis had received to, among others, George Rossner, the Network Engineer and Information Systems Security Officers for RDG ("Rossner"), for the recipients to investigate. (DSOF ¶ 40; Defs.' Mot., Ex. 18).

         Also that day, Jacqueline received a forwarded version of an email, signed by Rossner, which was originally drafted to send to DHS's Joint Intake Center, and was intended to serve as the "official statement" and summary of the cyber-stalking situation. (DSOF ¶ 41-42; Defs.' Mot., Ex. 19). In the statement, Rossner states that "not only are these happenings a concern to the victims themselves, but also [for] ... the loss of confidentiality when it comes to the everyday SBU/LES/PII information we handle as an operation on an everyday basis." (Id.). In a subsequent email to McClay and others, Rossner explained that he included this and other detail in the statement to "demonstrate urgency" and to "bring about a prioritized investigation by this organization." (Id.).

         On July 18, 2013, McClay sent an email to all PMC employees explaining that all pertinent information regarding the cyber-stalking situation had been forwarded to DHS for investigation, and instructing that electronic devices "are not to be directly or indirectly connected to any PMC computer[.]" (DSOF ¶ 44; Defs.' Mot., Ex. 20).

         On August 1, 2013, Plaintiffs, Berardis and Jackson also reported the cyber-stalking activity to the New Jersey State Police ("NJSP"), and between August 1, 2013 and September 30, 2013, the NJSP-while coordinating with McClay-conducted a thorough investigation of the situation. (DSOF ¶¶ 49-51). The investigation entailed, inter alia, numerous interviews, service of multiple subpoenas on internet and email providers, forensic review of computers and other electronic devices, surveillance and background research on suspects, and executing a search warrant. (Id.).

         Because McClay was coordinating with the NJSP, McClay-rather than RDG personnel-became Gemma's point of contact as to the progress of the investigation. (Id. ¶ 52). Gemma contends that when she spoke with someone at the NJSP on the phone during this investigation, they "weren't very nice" to her. (Gemma Dep. at 109)

         By mid-August 2013, McClay had also become a target of the cyber-stalking, and on September 10, 2013, Gemma reported to McClay that she had received a photograph of him with his wife from the unknown stalker. (DSOF ¶¶ 54, 56).

         On September 12, 2013, McClay emailed Plaintiffs, cc'ing Kelley, indicating that the investigation was ongoing, and instructing them to (1) cease discussing the cyber-stalking situation in the workplace, and (2) avoid "finger pointing" regarding the identity of the cyber-stalker. (Id. ¶ 57; Defs.' Mot., Ex. 23).

         On September 13, 2013, in the course of its investigation, the NJSP executed a search warrant on the home of Joseph Mandi, an RDG employee ("Mandi"), who had become a suspect in the New Jersey Police's investigation. Mr. Mandi was terminated from RDG, though he was ultimately not identified as the stalker. (DSOF ¶¶ 58, 60).

         ii. 2014 Cyber-Stalking Activity

         After Mandi's termination, from December 7, 2013 until at least March 2014, the cyber-stalking temporarily ceased. (DSOF ¶¶ 60, 61). When it resumed in, at the earliest, March 2014, the targeted individuals were, once again, Plaintiffs, Berardis and Jackson. All targeted employees again complained to McCombs and Steven Schrimpf, the Director of Security at RDG ("Schrimpf'). (Id. ¶¶ 62-63).

         This time around, Schrimpf conducted an internal investigation into the cyber-stalking situation, which included conducting interviews with Plaintiffs, Berardis, and Jackson about the messages they were receiving. (Id. ¶ 64). Schrimpf compiled the information he learned from the interviews into a summary, which he circulated to McCombs and Albert Gonzales, the President of Gonzales Consulting Services, and Member of RDG ("Gonzales"), on May 19, 2014. (Defs.' Mot., Ex. 24). The May 19, 2014 summary indicated that Gemma was "convinced by the number and content of the text messages [sent by the stalker] that [Berardis] is the primary impetus for all of the harassing messages." (Id., DSOF ¶ 67). Accordingly, Schrimpf s summary concluded that "[Berardis] appears to be the nexus to all of these events, as the majority of texts are sexually motivated towards him." (DSOF ¶ 68).

         At the end of the summary, Schrimpf made certain recommendations, including, inter alia, that (1) RDG should "coordinate with the assigned FPS Investigator and relay information obtained through employee interviews;" (2) "further investigation and interviews should be conducted with Dana Scott and K. Mustafaa, " since Gemma told Schrimpf that she suspected them of the cyber-stalking conduct; (3) RDG should "coordinate safety escorts for affected employees;" (4) RDG should "[ensure Kelley] is fully aware of the scope of the complaints[;]" and (5) RDG should "coordinate contact with the N.J. law enforcement agency investigating the Mandi case[.]" (Id. ¶ 68; Defs.' Mot., Ex. 24).

         On May 20, 2014, the day after Schrimpf sent his summary, Schrimpf emailed Plaintiffs, Jackson and Berardis stating that Kelley was aware of all the complaints and concerns regarding the cyber-stalking situation, and instructing them to report any further incidents to their "on-site supervisor or [Kelley]." He indicated that they would "let [them] know when FPS completes their investigation into the matter and what the resolution is." (Id. ¶ 69; Defs.' Mot., Ex. 25).

         D. Gemma's May 9, 2014 Altercation

         On May 9, 2014, Gemma got into an altercation with Khajeefah Mustafaa, another RDG employee/dispatcher ("Mustafaa"), while at work. (DSOF ¶ 72). Essentially, the telephone rang, Mustafaa said to Gemma, "Don't you answer the phone anymore, " and an argument escalated from there over who would answer the phone. (Id.). During the argument and in its aftermath, both women accused each other of doing homework online while at work. (Id. ¶ 77). Gemma admitted that if she had had an internet browser open when the phone rang and did not answer it, "that would be reason [for Mustafaa] to be ticked off." (Id. ¶ 76; Gemma Dep. at 144). She further admits that doing homework requires concentration and can, in some instances, be distracting from work. (DSOF ¶ 78; Gemma Dep. 149-150). During the course of the argument, Mustafaa also asked Gemma, "Don't you come to work anymore?[, ]" which Gemma believes "thr[ew] her FMLA out on the dispatch floor." (DSOF ¶ 74).

         After the altercation, Kevin Kline, the dispatch supervisor ("Kline"), issued a "Corrective Action Notice" to (1) Gemma, based on Berardis' first-hand account of the incident, (DSOF ¶ 72; Defs.' Mot., Ex. 26), and (2) Mustafaa, based on Mustafaa's own description of the incident. (Id. ¶ 73). While Gemma believes that Mustafaa's comment about coming to work had "thrown her FMLA out on the dispatch floor, " (id ¶ 74), Gemma concedes that Mustafaa, who was not her supervisor, did not have any authority to affect the terms of her employment, and her comment had no bearing on whether or not she was permittedto take FMLA leave. (Id. ¶ 75).

         Also after the altercation, RDG separated the women's workspaces, by temporarily moving Gemma to Region 2, and keeping Mustafaa in Region 3. (Id. ¶ 79). According to RDG, the decision to move Gemma, rather than Mustafaa, was due to Mustafaa's seniority, but Gemma thought that it was not fair to move her rather than Mustafaa because Gemma considered Region 3 "home base" and because she believed Mustafaa had been the bad actor in the altercation. (Id. ¶ 80; Gemma Dep. at 158-160).

         On May 12, 2014, Kelley sent an email to all PMC employees instructing that "[d]ue to recent incidents ... no dispatcher shall be working on homework during work hours. A violation of this policy could result in suspension and or termination. It is unfortunate that these policies had to be put into place by the abuse of the few." (Id. ¶ 81; Defs.' Mot., Ex. 29).[4]

         On May 14, 2014, Gemma emailed Kelley requesting to be moved back to Region 3, because "it is unjust that [her] work assignment [has] been altered as a result of the confrontation, " given that "[Mustafaa] attacked [her] and [she] feel[s] as though [she is] being unfairly punished[.]" (Id. ¶ 82; Defs.' Mot., Ex. 30).

         That day, Kelley responded that Gemma would remain in Region 2 "until such time as a complete investigation can be conducted." He continued, "[t]here is also the allegation of working on school work on a government computer and that is a government violation. [McClay] will need to be involved and he is currently on vacation. Once this is all complete a determination will be finalized." (DSOF ¶ 83; Defs.' Mot., Ex. 30).

         Gemma subsequently emailed McCombs to complain about the way Kelley was handling the altercation between her and Mustafaa. (DSOF ¶ 84, Defs.' Mot., Ex. 31). She closed the email by saying, "I just want you to know how grateful I am that you are taking things seriously." (DSOF ¶ 85). On May 15, 2014, Gemma emailed McCombs again, in which she restated her dissatisfaction with the way Kelley was handling the altercation and subsequent move to Region 2. Gemma said "[t]he appropriate thing to do would have been to make us both take turns working in different regions." (Id. ¶ 84; Defs.' Mot, Ex. 31).

         E. RDG's Discovery of Gemma's Violations of the Computer Use Policy

         Sometime after the altercation between Gemma and Mustafaa, Kelley instructed Rossner to pull the internet histories for Gemma and Mustafaa for May 9, 2014, the date of the altercation. (Id. ¶ 86). Upon review, it appeared that Gemma had logged in for two hours to complete online coursework at that day, while Mustafaa had not logged in at all. (Id.. ¶ 87, Defs Mot., Ex. 28). Kelley subsequently asked Rossner to pull each of their internet browsing histories for the past year, which again revealed that Gemma had been frequently completing homework and taking tests while on duty, and Mustafaa had not. (Id.). Gemma's browser history revealed that, between March 16, 2014 and May 9, 2014, she had spent 41.08 hours logged into while at work. (DSOF ¶ 88).

         On June 3, 2014, Kelley submitted a Recommendation for Termination of Gemma to Rudy Garcia, President of RDG ("Garcia"), and Gonzales, who decided to terminate her that day. (DSOF ¶ 91, Defs Mot., Ex. 28).

         F. RDG's Discovery of Jacqueline's Violations of the Computer Use Policy

         Notwithstanding the incidents related to Gemma altercation with Mustafaa, RDG continued its ongoing investigation into the cyber-stalking situation, as indicated in Schrimpf s May 19, 2014 summary.

         On June 11, 2014, Schrimpf emailed Plaintiffs, Jackson and Berardis to update them on the "status of what is occurring regarding your complaints/concerns[, ]" namely, that "FPS has taken over this inquiry into what had been occurring, and "[t]o avoid duplicating efforts or interfering with their investigation, we have essentially suspended any further internal query into this matter." (DSOF ¶ 94; Defs.' Mot., Ex. 33). He advised that "FPS is speaking with different persons, gathering evidence, and trying to draw some conclusions as to who may be responsible." He added that, in the meantime, they should "continue to directly notify [McCombs and Schrimpf] of any further concerns you may have or addition events that occur." (Id.).

         On June 18, 2014, Schrimpf circulated an email to Gonzales, McCombs and Garcia, providing an update on the investigation. (DSOF ¶ 95; Defs Mot, Ex. 34). He stated that, because they caught Gemma "in a few lies" and because "one of the messages from last year originated from Gemma's neighbor's IP address, " the "NJSP Investigator feels that Gemma may be responsible for this entire series of events and that is where their investigation is starting to focus." (Id.).

         Sometime in June 2014, Agent Anthony Fuscellaro, a special agent with FPS ("Fuscellaro"), requested to review the internet browser histories from all employees complaining of cyber-stalking; namely Plaintiffs, Jackson and Berardis. (DSOF ¶ 96). Based on that review, on July 1, 2014, an FSP officer advised RDG's President Garcia that "[o]n June 30, 2014, it was brought to [his] attention by [McClay] that. . . Jacqueline Sawa . . . had been completing on-line college courses on a Government computer during work hours." (DSOF ¶ 96, Ex. 36). The FPS officer requested that RDG immediately address the problem because such activities were routinely occurring and it was the "third such instance over the past year and a half in which an RDG employee engaged in activities during work hours." (DSOF ¶ 98). Jacqueline's browser history revealed that she had spent 26.5 hours completing online college courses during working time. (Id.¶¶97, 100). RDG had to refund Jacqueline's salary for this time to FPS, but Jacqueline never had to refund her wages earned for this time to RDG. (Id. ¶ 100).

         On July 24, 2014, Jacqueline was suspended. (Id. ¶ 99). On July 30, 2014, she was terminated from RDG, pursuant to a Recommendation for Termination submitted by Kelley to Garcia and Gonzales. (Id. ¶ 101).

         McCombs told Jacqueline that the reason she was being terminated was because she had spent time doing online educational ...

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