United States District Court, E.D. Pennsylvania
GEMMA SAWA, et al.
RDG-GCS JOINT VENTURES III, et al.
MEMORANDUM RE: DEFENDANTS' MOTION FOR SUMMARY
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
(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
"Walden.edu, " 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.
reasons discussed below, Defendants' motion will be
GRANTED in its entirety.
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").
General Facts of Plaintiffs' Employment
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).
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. ¶¶
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).
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).
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.")
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).
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.).
"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
Walden.edu-the online course website that Plaintiffs
used in this case-did not have this type of
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." (DSOF
¶¶ 26; PSOF ¶ 26).
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.(DSOF¶30).
Cyber-Stalking Complaints and Initial Investigation
record evidence, summarized below, provides a detailed
account of the highly-unusual cyber-stalking situation that
began to unfold at RDG in 2013.
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).
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).
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.
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
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).
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).
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
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.
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
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)
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).
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).
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).
2014 Cyber-Stalking Activity
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.
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).
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).
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).
Gemma's May 9, 2014 Altercation
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).
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).
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).
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).
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.,
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).
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).
RDG's Discovery of Gemma's Violations of the Computer
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
Walden.edu 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 Waldenu.edu while at work. (DSOF
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).
RDG's Discovery of Jacqueline's Violations of the
Computer Use Policy
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.
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.).
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
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).
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).
told Jacqueline that the reason she was being terminated was
because she had spent time doing online educational